Posted by Curt on 28 September, 2007 at 6:45 pm. 5 comments already!

But I thought there was nothing wrong with FISA the way it was set up in the 70’s?  Could these soldiers lives had been saved?

I guess we will never know. But we do know that for over 12 hours intelligence agencies couldn’t get an emergency warrant to listen in on the kidnappers of three American soldiers.

A rundown of the times by ABC:

May 12, 2007: :Three US solider were reported missing and believed to have been captured by Iraqi insurgents…SIGINT [signal intelligence] assets responded by dedicating all available resources to obtaining intelligence concerning the attack.”

13 & 14th: Intelligence community began to develop leads.

May 15: 10:00am “key US agencies met to discuss options for colleting additional intelligence.”

10:52am: “NSA notified..DOJ of its desire to collect communications that require a FISA order…it was determined some FISA coverage already existed.”

12:53pm to 5:15pm :”Administration lawyers and intelligence officials discussed various legal and operational issues associated with the surveillance.”

5:15pm: DOJ’s FISA Office the Office of Intelligence Policy and Review (OIPR) received a call formally requesting emergency authority to conduct surveillance.”

5:30pm: “The OIPR attorney on duty attempted to reach the Solicitor General who was the Acting Attorney General while Attorney General Gonzales was addressing a United States Attorney’s Conference in Texas. However the Solicitor General had left for the day and the decision was made to attempt to reach Attorney General in Texas.”

OIPR contacted DOJ command center and requested to locate the Attorney General. “After Several telephone calls with the staff accompanying the Attorney General, the OIPR lawyers were able to speak directly with the Attorney General and brief him on the fact of the emergency request.”

” At 7:18pm, the Attorney General authorized the requested surveillance, the Justice Department attorney’s immediately notified the FBI.”

“At 7:28pm, the FBI notified the key intelligence agencies and personnel of the approval.”

“At 7:38pm, surveillance began.”

And here is Powerline’s take on the argument that the 72 hour rule should allow the eavesdropping:

Seattle Slough claims that FISA allows eavesdropping to happen with a warrant applied for 72 hours later. So that should take care of it, then, he asserts.

Wrong. And when I say wrong, understand I am not 100% sure of this, but I’m pretty sure he’s wrong. The old law permits the AG and the AG only (well, I guess the President too) to authorize this “emergency authorization” to permit eavedropping without court-issued warrant. However, the law requires the eavesdropping stop until this emergency authorization is approved, and furthermore, the law requires those seeking the authorization to determine all necessary facts to the extent possible (that these are foreigners not entitled to full Constitutional protections, that time is of the essence, etc.) and make a detailed case with a fully supported paper trail for later review.

So no, Seattle, I don’t think it’s the case you can just continue eavesdropping and take all the time you like to apply for that warrant 72 hours later. I believe the law requires extensive and time-consuming pseudo-warrant-applications just to get the emergency authorization in order to continue the eavesdropping until the warrant is actually secured.

This is just further evidence that FISA needs to be dismantled piece by piece.


Ace with some great commentary on a typical lefty tactic:

Confronted with the bad outcomes caused by their ridiculous laws, Democrats always seem to argue, basically, that people should ignore the law when necessary. They insinuated that when the DoJ determined it did not have legal cause to examine Zaccharias Moussaui’s laptop without a warrant, for example: They should have just had the foresight to know they should ignore the law and search for 9/11 plots on that laptop.

This is not a tolerable view of the law nor how the law should function. True enough, there will be cases where any sane man will ignore the law when life hangs in the balance. But the Democrats just continue to pander to their paranoid BDS MoveOn voters with very restrictive and impractical laws, and then just parry criticisms of these laws away with vague insinuations that soldiers and CIA operatives ought to be brave enough to risk their careers in ignoring the laws they’ve made when "appropriate." "Appropriate" being defined as when it turns out, in the perfect clarity of hindsight, that their laws cost human lives.

Your damned if you do and damned if you don’t type of argument.  Lets put up walls of paper and authorizations to eavesdrop on foreign calls but when its found that those restrictions caused many people to lose their lives they then insist that the intelligence agencies should of just been smarter, or more thorough.  You know, like in the movies.