Today, Michigan Republican Pete Hoesktra sent a scathing letter to NYT executive editor Bill Keller, detailing what Hoekstra called the Times’ "…recklessness in repeatedly disclosing highly classified intelligence programs to enemies who seek to attack our nation," and the Times’ coverage of the Foreign Intelligence Act amendments.
Hoekstra said of the Times’ editorial titled, "The Fear of Fear Itself," "The only real basis for "fear" here is the scare tactics being perpetuated by the Times, which has knowingly and willfully misrepresented the new law to scare the American people."
READ THE WHOLE LETTER HERE
Mr. Bill Keller
The New York Times
620 Eighth Avenue
New York, NY 10018
Dear Mr. Keller:
It has been my practice not to deal with the New York Times after its recklessness in repeatedly disclosing highly classified intelligence programs to enemies who seek to attack our nation and because of what I believe was a lack of honesty and integrity in its dealings with me as Chairman of the Committee at that time.
However, I believe that your editorial this morning “The Fear of Fear Itself”, and an article that ran yesterday purporting to describe legislation to clarify the Foreign Intelligence Surveillance Act (“FISA”) I supported in the House of Representatives to address an urgent intelligence gap so mislead the American people as to require urgent correction. The only real basis for “fear” here is the scare tactics being perpetuated by the Times, which has knowingly and willfully misrepresented the new law to scare the American people.
Before moving to a point-by-point rebuttal based on the actual text of the new law, extensive experience with FISA, and knowledge of the actual facts at issue not available to the Times, I would like to also address two broader points. First, the legislation was intended to address significant and substantial intelligence gaps that have arisen at a time of enhanced threat of terrorist attack on the United States. The need for the bill was urgent and obvious. DNI McConnell repeatedly emphasized that “we are missing a significant portion of what we should be getting” to detect and prevent terrorist attacks. Bipartisan recognition of the need for this bill is why it passed both the House and the Senate so quickly.
And the recently released key judgments of a National Intelligence Estimate clearly emphasized that the United States is in a time of enhanced threat from Al Qaeda, which still is planning “high-impact plots” “likely to continue to focus on prominent political, economic, and infrastructure targets with the goal of producing mass casualties.” Had we not passed this law and an attack not been prevented, I’m sure that the New York Times would have been first in line to criticize the failure to “collect the dots”, much less to “connect the dots”.
Second, it is unfortunate that you so completely disregard the professional judgments of DNI McConnell, other Intelligence Community professionals, and even indications from judges of the FISA Court itself that this legislation was urgently needed to close intelligence gaps and better focus the FISA process on protecting the civil liberties of Americans instead of radical jihadists overseas. Director McConnell – who served as NSA Director under President Clinton – deserves praise for repeatedly emphasizing that FISA reforms must balance intelligence speed with the civil liberties of Americans. His personal involvement and guidance of this process at every step were critical to making it happen, and he deserves PRAISE for his effectiveness and professionalism instead of ugly personal attacks. There is no evidence whatsoever that any alleged “agreement” was reached with congressional Democrats, and there is no cause to smear Admiral McConnell based on hearsay.
Below, I have corrected a number of specific misstatements and exaggerations in your August 6 article and in this morning’s editorial. Any of them should have been readily apparent from a cursory look at the text of the law itself, but unfortunately your newspaper chose fearmongering over what “might” be happening rather than the facts and what the law actually says.
• Misstatement and Exaggeration: “…impact went far beyond the small fixes that administration officials had said were needed to gather information about foreign terrorists.”
o Facts: FISA is an extremely complex statute that is difficult enough to understand and apply even when it is not being deliberately distorted. Unfortunately, instead of reading the law, the New York Times chose to make up new assertions wholly unsupported by the facts. This did a disservice to our intelligence professionals who are attempting to keep America – especially prominent targets such as New York – safe.
o The new law plainly and expressly provides that surveillance must be “directed at” (targeted to) a person reasonably believed to be located outside the United States. Under well-established FISA practice and precedent, this only permits surveillance of foreign targets on foreign soil, not Americans on American soil. The Intelligence Community must develop procedures to ensure this is the case, and those procedures must be reviewed by the FISA Court.
o Any surveillance targeting Americans in the United States would still require an individual warrant from the FISA court, and any incidental collection of the communications of U.S. persons would still be subject to extensive minimization procedures. The bill expressly requires such minimization procedures to be imposed on any surveillance conducted under the new law, and those procedures must also be reviewed by the FISA court,
o Congresswoman Wilson expressly clarified in the Congressional Record that so-called “reverse-targeting” of the communications of Americans is intended to be illegal under this bill. Director McConnell also repeatedly has stated his intent in congressional briefings to seek an individualized order of the FISA Court to target any communication of an American.
o Judges of the FISA Court itself have also clearly expressed frustration with the fact that so much of their docket is consumed by applications that focus on foreign targets and involve minimal privacy interest of Americans.
• Misstatement and Exaggeration: “…new law for the first time provided a legal framework for much of the surveillance without warrants that was being conducted in secret by the National Security Agency and outside the Foreign Intelligence Surveillance Act … that is supposed to regulate the way the government can listen to the private communications of American citizens.”
o Facts: The Attorney General has publicly disclosed that the activities previously conducted under the Terrorist Surveillance Program described by the President were moved completely under FISA. The new law applies only to surveillance targeted at foreign persons, and a FISA order would continue to be necessary for surveillance targeted at Americans. The current FISA structure can handle these applications with speed and agility.
• Misstatement and Exaggeration: “[A] still-classified ruling earlier this year … which said the government needed to seek court-approved warrants to monitor those international calls going through American switches.”
o Facts: It’s not necessary to address or discuss any alleged court opinion to demonstrate that this assertion is false. The FISA modernization legislation passed by the House in the 109th Congress – well before the alleged opinion – attempted to address and close the FISA loophole for foreign terrorists.
• Misstatement and Exaggeration: “[T]he court’s only role will be to review and approve the procedures used by the government in the surveillance after it has been conducted.”
o Facts: This is a false and selective characterization of the plain provisions of the law. Third parties who are asked to assist the intelligence community under the law may challenge the legality of any directive by filing a petition with the FISA Court.
• Misstatement and Exaggeration: “[T]oo scared of Republican campaign ads to use it to protect the Constitution.”
o Facts: Even without addressing the obvious fact that radical jihadists in foreign countries are not entitled to privacy rights under the Constitution relating to foreign intelligence collection, courts that have addressed the issue to date have made clear they believe that the type of surveillance contemplated by the bill is fully consistent with the Constitution, including the Fourth Amendment.
• Misstatement and Exaggeration: “They gave the Director of National Intelligence and the attorney general authority to intercept – without warrant, court supervision or accountability – any telephone call or e-mail message that moves in, out of or through the United States as long as there is a ‘reasonable belief’ that one party is not in the United States.”
o Facts: This assertion is false under the express terms of the statute. The law clearly requires that the surveillance be “directed at” (meaning targeted to) persons outside the United States, and that procedures be in place and reviewed by the FISA Court to ensure that surveillance concerns persons outside the United States. In addition, the law requires minimization procedures reviewed by the FISA Court to be in place to deal with incidental collection of communications of Americans.
• Misstatement and Exaggeration: “It would allow the government to intercept, without a warrant, every communication into or out of any country, including the United States.”
o Facts: If this were the case, the FISA Court would be virtually shut down. We still expect the Court to be conducting a significant and appropriate volume of work to protect the privacy interests of Americans, as it has and as it should.
Protecting America at a time of increased threat continues to pose great challenges for our Intelligence Community and our professionals. It is unfortunate that you choose to compound those difficulties with further politicization, fear-mongering, and the suggestion that we simply dismiss the increased threats to American citizens at home and abroad.
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