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Intelligence Director to Testify in House Judiciary Committee, Members Request More Details on Surveillance Activities

September 11, 2007

Judiciary Committee Chairman John Conyers, along with subcommittee Chairmen Jerrold Nadler and Robert C. Scott have sent a letter to National Intelligence Director J. Michael McConnell requesting previously undisclosed information about the Administration’s domestic surveillance programs in advance of his testimony before the Committee next week to discuss changes to the Foreign Intelligence Surveillance Act (FISA). McConnell and Kenneth L. Wainstein, Assistant Attorney General for National Security, will testify before the Committee next Tuesday, September 18, at 11 a.m. in 2141 Rayburn House Office Building. The letter to McConnell addresses the Members’ concerns that he may have selectively released information about the domestic surveillance programs to the media and not did provide requested information to Congress.

September 11, 2007

The Honorable Michael “Mike” McConnell
Director of National Intelligence
Office of the Director of National Intelligence
Washington, DC 20511

Dear Director McConnell:

At the hearing held in our Committee last week, a number of serious concerns were raised by several members about your recent interview with the El Paso Times, in which you revealed “previously classified details of government surveillance” activities. K. Shrader, “Spy chief reveals classified details about surveillance.”1 Especially in light of the Administration's previous refusal to provide such information to Congress, this selective disclosure of information raises troubling questions that we ask you to address prior to your scheduled appearance before the Committee next week to discuss proposed changes to the Foreign Intelligence Surveillance Act (FISA).2

Previously, when the Judiciary Committee has attempted to obtain this and similar information about Administration surveillance programs, the response has been that information about surveillance programs is “classified and sensitive, and therefore cannot be discussed” in responding to Committee questions.3 In a public affidavit submitted earlier this year as part of In re National Security Agency Telecommunications Records Litigation,4 moreover, you asserted the state secrets doctrine to seek dismissal of a case concerning foreign intelligence surveillance, attempting to prevent even confirmation as to whether U.S. companies were involved in surveillance activities. During the very week you disclosed the involvement of private companies in your El Paso interview, the Justice Department continued to make that argument before the Ninth Circuit Court of Appeals.5

In light of these concerns, we ask that you answer the following questions in writing prior to your testimony next week::

1. Was a specific decision made to declassify any previously-classified information contained in the El Paso Times interview and, if so, when, by whom, and under what authority? Please provide the background and a specific explanation for any such decision.

2 In light of your public confirmation of the involvement of “private sector” telecommunications companies in the Administration's surveillance programs, what is the specific justification for your claim a few months earlier in litigation that confirmation of such involvement cannot be permitted under the state secrets doctrine? What steps have been or will be taken by you or by the Justice Department with respect to the earlier assertions, now contradicted by the El Paso Times interview, that participation of private companies in Administration surveillance programs cannot be confirmed?

3. The Administration's report to Congress states that 2,181 FISA applications were filed in 2006. If each application takes 200 man-hours, as you suggested in the El Paso interview, this would require at least 218 attorneys and analysts working full-time for more than 436,000 hours on nothing but warrant applications. Do you continue to stand by your assertion to the El Paso Times that “[i]t takes about 200 hours” to do the application for each phone number?

4. According to an article in today's New York Times, you made another selective disclosure of classified information when you claimed yesterday to a Senate committee in public session that the temporary FISA law just passed by Congress helped lead to the arrests last week of three Islamic militants accused of planning bomb attacks in Germany. The article also states, however, that another official stated that you may have misspoken and that the intercepts in question were obtained under the old law.6 Please state whether a specific decision was made to de-classify the information you provided to the Senate Committee and, if so, when, by whom, under what authority, and what was the specific background and explanation. In addition, please clarify whether the intercepts in question were foreign-to-foreign, as your statement implied, and whether they were in fact obtained under the old FISA law or the new FISA law.

We look forward to your prompt reply to these questions and to your continued cooperation as Congress considers FISA's future. Responses and questions should be directed to the Judiciary Committee office, 2138 Rayburn House Office Building, Washington, D.C. 20515 (tel: 202-225-3951; fax: 202-225-7680). It would be of the utmost assistance to the Committee if your responses to the above questions were provided to us by no later than 2 PM on Monday, September 17, 2004, in advance of your testimony before us the following day. Thank you for your assistance.

Sincerely,

John Conyers, Jr.
Chairman

Jerrold Nadler
Chairman, Subcommittee on the Constitution, Civil Rights and Civil Liberties

Robert C. “Bobby” Scott
Chairman, Subcommittee on Crime, Terrorism and Homeland Security

cc: Hon. Lamar S. Smith
Hon. Trent Franks
Hon. J. Randy Forbes