Hearing of the Senate Armed Services Committee - Worldwide National Security Threats


By:  Lindsey Graham
Date: Feb. 27, 2008
Location: Washington, DC


SEN. LINDSEY O. GRAHAM (R-SC): Thank you, Mr. Chairman.

A practical application of FISA in Iraq, I think, has been discussed in the past. I think we had a -- sometimes last year, there was a kidnapping of three American soldiers. Are you familiar with this case?

MR. MCCONNELL: Yes, sir. Last June.

SEN. GRAHAM: Okay. Can you walk me through -- very briefly -- what happened in that case and what can we learn from the problems that we found?

MR. MCCONNELL: Yes, sir. The kidnapping took place and then everything -- the tactical, local -- separate, if you would, two kinds of communications -- wireless and wire. If it's wireless -- their walkie-talkie or whatever -- we're doing everything possible. So we're collecting. Some of those that we believe to be responsible engage in communications activity that uses wire. I think laptop to -- connection to the Internet and so on. And it's not uncommon for -- because of the configuration of the globe now removes the path of least resistance at the least cost at the fastest speed, so it wouldn't be uncommon for somebody in Baghdad talking to somebody else in Baghdad for it to go through the United States because it's -- fiber optics moves fast.

SEN. GRAHAM: Now what kind of equipment are they using to talk with each other?

MR. MCCONNELL: Just standard laptop -- even could be a cell phone.

SEN. GRAHAM: Okay. All right --

MR. MCCONNELL: So now as we work this problem and we got into it, we had an opportunity to get more and better to have better collection and understanding of who the perpetrators are who are they working for, how does the larger group operate. So the issue is some of the communications pass through a wire in the United States. And at that point in time, the law said you must have a warrant. So we have to stop and now produce about a two-page -- two-inch document --

SEN. GRAHAM: Well, let's slow down a bit. We've got a conversation going using wire technology, right?

MR. MCCONNELL: Yes sir, that's correct.

SEN. GRAHAM: Between two people in Iraq --

MR. MCCONNELL: Multiple people --

SEN. GRAHAM: Multiple people in Iraq.

MR. MCCONNELL: Yes, sir.

SEN. GRAHAM: We believe to be non-U.S. citizens.

MR. MCCONNELL: They are non-U.S. citizens. Yes, sir.

SEN. GRAHAM: That we believe to be involved in kidnapping three American soldiers.

MR. MCCONNELL: Yes, sir.

SEN. GRAHAM: And because of the modern world, some of these connections passed through the United States.

MR. MCCONNELL: That's correct.

SEN. GRAHAM: So at that point in time, we had to stop the battlefield intervention to go get a warrant.

MR. MCCONNELL: Yes, sir.

Now there's a situation here called emergency procedures. But the key for us -- the thing that's hard for people to understand is if you're going to do a wire tap in that circumstance, the law says wire in the United States -- you have to have a warrant. Therefore, the requirement is probable cause and is a --


MR. MCCONNELL: -- in your background, you know exactly what that is -- a tough standard. Now some say, "Well, just go faster. It's an emergency. You can go anyway." But you still have to provide probable cause standards. So first of all, somebody has to write it down and justify it and do the research, and so on. Then it goes to their leadership for signature, comes to me for signature -- I send it to the attorney general for signature.

SEN. GRAHAM: How long did this take?

MR. MCCONNELL: We -- it probably took us a better part of a half-day on emergency procedures.

SEN. GRAHAM: Okay. Now -- so for that half-day period, we were able to -- we were unable to listen and track, is that correct?

MR. MCCONNELL: Well, you can actually extend it a little beyond that. Once we realized it, the issue then becomes, "What is it we need to do?" So if you factor all of that time in, it goes -- it's a little longer than a half day. But yes, sir, that's correct.

SEN. GRAHAM: Have we fixed that in the Senate bill?

MR. MCCONNELL: Yes, sir.

SEN. GRAHAM: Okay. So that's a good thing.

MR. MCCONNELL: The Protect America Act bill that passed last August corrected it --


MR. MCCONNELL: -- and then expired.


MR. MCCONNELL: But the Senate bill fixed that.


MR. MCCONNELL: And let me add one other thing, sir. This is very important, and this is very important for the American people to understand. And the Senate bill extended warranted, court-provided protection to any U.S. person anywhere on the globe, period.

So we protect U.S. persons. We do foreign intelligence. And the foreign intelligence is the issue. That's what we're trying to do -- unimpeded by the fact we have to stop and work through a court.

SEN. GRAHAM: From this kidnapping episode we learned a very hard lesson, because no telling what we missed, but we learned that lesson. Congress came together and passed legislation to fix that problem. It's expired, now we're hung up again.

This no-man's land that we're in -- how has affected our ability as a nation to defend ourselves?

MR. MCCONNELL: Well, for the past week after it expired, we were in negotiation with the private sector to add additional information.

Once you -- I don't want to be too specific here, because I know the bad guys are listening -- but if you're going to pull information out of the global infrastructure, you have to do it surgically. I mean, you can't -- it's lots of stuff, so you want to know how to pull it out.

So once you have a method for doing that, you have to have the cooperation of the private sector to enable. And the answer initially was -- wait a minute, this law's expired. You can't compel. We're not sure we're going to do any more than we're doing exactly right now.

So our question was, we've got more to add. We have the authority, but we have more to add. And they said, not so fast. So we negotiated. We thought we were going to lose it. And as of Friday, we issued a statement to try to tell everybody what was going on. And Friday night -- last Friday night -- they said, all right. We're going to add in what you asked us.

Now -- so at the moment, we're okay. But the question -- what happens the next time or what happens if it's a new communications method -- remember, this stuff morphs all the time. So the authorities that we have now are for a set of capabilities. If there's a new capability, there's no authority.

SEN. GRAHAM: So the agreement doesn't get you where you need to go in an ever-changing battlefield.

MR. MCCONNELL: No, sir. The issue, sir, is we can't keep up. This is dynamic. It moves in seconds and minutes and there's no way we can keep up if we have to keep going back for court authorization.

SEN. GRAHAM: Well, let's talk about the enemy called al Qaeda in Iraq.

Why do you think al Qaeda operatives were sent to Iraq by senior Iraqi -- al Qaeda leaders outside of Iraq? We know they're doing that. There are foreign al Qaeda operatives going into Iraq. Bin Laden says: Go to the land of the two rivers, Iraq; this is the great battle. Why are they going to Iraq?

What compels al Qaeda to feel the need to go to Iraq and fight us?

MR. MCCONNELL: Primarily it was to stimulate sectarian violence between the Sunnis and the Shi'as. And that's what they did for most of --

SEN. GRAHAM: But why are they doing that?

MR. MCCONNELL: Ultimately, what they would like to see -- in my view -- is the Sunnis prevail in Iraq and then that potentially provides a base of operations for -- if al Qaeda prevails -- a place for al Qaeda to operate from.

SEN. GRAHAM: Were they threatened by this concept called moderation that was being tried in Iraq? Do you believe that would undermine the al Qaeda agenda if Iraq became a stable, functioning government where Sunnis, Shi'as and Kurds could live together under the rule of law, a woman could have her say about her children? Do they lose if that happens?

MR. MCCONNELL: They lose, sir.

SEN. GRAHAM: Do you think they know they lose if that happens?

MR. MCCONNELL: Oh, yes, sir. They know that. I mean, this is totally contrary to their point of view, so they lose.

SEN. GRAHAM: Do you believe Iraq is a battle in an overall global struggle, or is it an isolated event uninvolved with the war on terror generally?

MR. MCCONNELL: It is not isolated. There are lots of debates about cause and effect and so on, but stability in the Middle East is absolutely essential in the interests of this country for the next 30- 50 years.

SEN. GRAHAM: What would be the payoffs in the region if Iraq became a stable, functioning government based upon the rule of law that rejected extremism, denied al Qaeda a safe haven, lived at peace with its neighbors and aligned themselves with us in the greater fight? What would be the payoff to America in terms of our national security?

MR. MCCONNELL: Stability in the region, a check on Iran's expansionism, a reliable supply of oil to flow to customers around the world, potential spread of democratic values in the region to its neighbors. So I see nothing -- if Iraq evolved the way you just explained it, to me that would be the ideal for moderation in the Middle East.


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