Carl Levin brought up the allegation about FISA allegedly delaying intelligence collection a few days after a kidnapping in Iraq of members of the American military, after it was first raised by Lindsey Graham at an Armed Services Committee hearing 2/27/08 (at which Levin and Reed were the only Democratic attendees).

Carl Levin wanted to know, from DNI Mike McConnell, whether the House RESTORE bill "fixed" the problem of needing to obtain a warrant for spying on targets abroad that the Iraq kidnapping situation is said to have had under the old FISA, as McConnell said the Senate/White House FISA bill does. [It would appear this Iraq situation may have been an email collection problem at an American-located ISP (otherwise inaccurately known as the 'foreign to foreign on a US wire' problem).] McConnell said he didn't know (!), and he'd ask his General Counsel Ben Powell. When Powell returned to the hearing room, Levin asked him directly.

Starting at about 1:39 into the hearing, referencing the "specific fact situation" re the Iraq kidnapping raised earlier by Senator Graham:

Senator Carl Levin: "Would that have been fixed by the House bill [RESTORE]?"

ODNI General Counsel Ben Powell:

"I think the answer to that is no. And the specifics of that:

"First, what the House bill does is have us go to the FISA court for a court order to authorize our initiation of surveillance. So first we would be in a situation where we're going to the court. There are emergency provisions, to be fair, in the House bill..." [similar to FISA's - which we did in fact use in the Iraq situation/case.] "But we would have a base line requirement to go with a court order or to go with some type of emergency authorization.

A second issue would be that the House bill contains a significant purpose test which says that if a significant purpose of our reason for doing the surveillance is to acquire the communications with a [it's actually "of a specific"] U.S. person, we would have to go and get a FISA court order for that. That presents us with the issue of: We would certainly be very interested to know if somebody who'd kidnapped an Iraqi soldier was communicating with somebody here in the United States. So could I certify under oath to a court that a significant purpose of acquiring that communication was not to determine whether they're communicating with a [specific] U.S. person? In fact we would be very interested in that. The Senate bill says that if the purpose is to get a U.S. person communication then in fact you have to get a FISA order. But if it's just one of the significant purposes, that would present some difficulty to us. Particularly the upfront going to the court."

[Powell continued re their foreign targeting procedures to FISC under PAA were submitted in August with their initial authorization, and they weren't approved until January (but collection commenced pre-approval). So the FISA Court is very diligent, they have numerous questions. They want to be sure they are doing a full and fair review and job.]

Levin: "The procedures are not the ones that need to be approved - it's the "specific intercept" you're saying, under the House bill?"

Powell: "Under the House Bill, it, it, um - they have kind of a more broader approval not necessarily on specific surveillances, it's on groups and targets. So it would depend on what this group was. Did we have an existing authorization that already covered this group already approved by the court in place. If we did, perhaps we could go up on them. Or we would have to look at an emergency type of proceeding."

Levin: "The answer is it depends on the group then?"

Powell: "In that case it would depend whether we'd already gone to the court under those procedures upfront to get them, yes."

Levin: "The answer may be to the question I asked is, 'it depends?'"

Powell: "Well, it is a complex area, unfortunately, and that's what we're trying to clear up..."

[I would have great concern about the significant purpose test, though, because... says Powell. I understand... says Levin]

Levin: "It depends on whether the group is already covered" is the answer?" (other than the significant purpose test).

Point more or less conceded by Powell.

[Second round in the next post.]