Nice One, Admiral

Director of National Intelligence Mike McConnell has waded a second time into the political debate about the CATCH-ALL program, and this time appears to have stepped on his dick.

McConnell was pretty much forgiven when he lobbied Democratic lawmakers [with the White House on the other line] to accept the GOP bill last month that weakened FISA. However, there may be broad ramifications to his more recent mis-step.

McConnell was trying to lay the plumbing in the press for legislation that would grant retroactive immunity for telecoms that participated in the extra-legal warrantless surveillance programs. He appears to have made an exploitable legal blunder in his PR outreach.

The Bush administration acknowledged for the first time that telecommunications companies assisted the government's warrantless surveillance program and were being sued as a result, an admission some legal experts say could complicate the government's bid to halt numerous lawsuits challenging the program's legality.

"[U]nder the president's program, the terrorist surveillance program, the private sector had assisted us," Director of National Intelligence Mike McConnell said in an interview with the El Paso Times published Wednesday.

His statement could help plaintiffs in dozens of lawsuits against the telecom companies, which allege that the companies participated in a wiretapping program that violated Americans' privacy rights, former Justice Department officials said. ...

An appeals court in San Francisco is weighing the government's argument that these cases should be thrown out on the grounds that the subject matter is a "state secret" and that its disclosure would jeopardize national security.

The government has repeatedly asserted that any relationship between the telecommunications firms and the National Security Agency's spy program is classified. The firms' alleged cooperation and other details of the program, government lawyers have argued, are so sensitive that they cannot be disclosed. The government has argued the lawsuits against the telecom firms must be dismissed.

"[D]isclosure of the information covered by this [state secrets] privilege assertion reasonably could be expected to cause exceptionally grave damage to the national security of the United States," McConnell said in a sworn affidavit filed in a federal court in San Francisco in May.

David Kris, a former Justice Department official in Republican and Democratic administrations, said McConnell's admission makes it difficult to argue that the phone companies' cooperation with the government is a state secret. "It's going to be tough to continue to call it 'alleged' when he's just admitted it," Kris said. ...

A challenge for the plaintiffs is to make a case using only public facts, said Kris, co-author of a new book, "National Security Investigations and Prosecutions." McConnell has just added to "the list of publicly available facts that are no longer state secrets," increasing the plaintiffs' chances that their cases can proceed, Kris said.

McConnell's statement "does serious damage to the government's state secrets claims that are at the heart of its defenses," said Greg Nojeim, senior counsel at the Center for Democracy and Technology and an expert on state secrets privilege.

In his interview, McConnell also said that open discussion on matters such as these "means that some Americans are going to die."

But Bruce Fein, an associate deputy attorney general in the Reagan administration, said that McConnell's disclosure shows that "an important element of a program can be discussed publicly and openly without endangering the nation."

Fein noted that in the 1970s, President Richard Nixon argued national security would be harmed if the Church Committee permitted hearings on government surveillance of civilians. "These Cassandran cries that the earth is going to fall every time you have a discussion simply are not borne out by the facts," he said.

Mr. McConnell made the remarks apparently in an effort to bolster support for the broadened wiretapping authority that Congress approved this month, even as Democrats are threatening to rework the legislation because they say it gives the executive branch too much power. It is vital, he said, for Congress to give retroactive legal immunity to the companies that assisted in the program to help prevent them from facing bankruptcy because of lawsuits over it. ...

Mr. McConnell ... put new information on the public record in the interview, on Aug. 14 while in Texas for a border conference.

Mr. McConnell said, for instance, that the number of people inside the United States who were wiretapped through court-approved warrants totaled "100 or less" but on the "foreign side, it's in the thousands." The Foreign Intelligence Surveillance Court, which approves national security wiretaps, told Congress it approved 2,181 eavesdropping warrants last year. The court and the administration have not been willing to break out how many Americans were in those orders. ...

Mr. McConnell also offered the administration's first public discussion about a classified series of rulings by the intelligence court that he said had restricted the agency’s ability to collect foreign intelligence.

He said one judge this year gave broad approval for the agency’s eavesdropping program. But another judge, he said, ruled in the spring that the administration would have to obtain a warrant for any "foreign to foreign" communications that passed through an American telecommunications center.

The administration obtained a stay of that ruling until May 31, he disclosed, but after that date he intelligence officials had "significantly less capability" to track foreign communications. The ruling sent the administration "in the wrong direction," he added.

The American Civil Liberties Union, which has petitioned the intelligence court to make public its secret wiretapping rulings, expressed frustration on Thursday with the timing of Mr. McConnell’s comments.

"If this ostensibly sensitive information can be released now, why could it not be released two months ago, when the public and Congress desperately needed it?" asked Jameel Jaffer, director of the group's national security project.

Steven Aftergood, director of the Project on Government Secrecy for the Federation of American Scientists, said the interview "was quite striking because he was disclosing more detail than has appeared anywhere in the public domain."

"If we're to believe that Americans will die from discussing these things," Mr. Aftergood said, "then he is complicit in that. It’s an unseemly argument. He's basically saying that democracy is going to kill Americans."