FISA Gave al-Qaeda Time to Kill U.S. Troops

On May 12, 2006, three U.S. soldiers were abducted by al-Qaeda in Iraq. PFC Byron Fouty and PFC Joseph Anzack Jr. were later found murdered. SPC Alex Jimenez was never found.

The New York Post is reporting that U.S. intelligence officials got mired for nearly 10 hours seeking approval to use wiretaps against al Qaeda terrorists suspected of kidnapping SPC Jimenez:

Sometime before dawn, heavily armed al Qaeda gunmen quietly cut through the tangles of concertina wire surrounding the outpost of two Humvees and made a massive and coordinated surprise attack.

Four of the soldiers were killed on the spot and three others were taken hostage.

A search to rescue the men was quickly launched. But it soon ground to a halt as lawyers - obeying strict U.S. laws about surveillance - cobbled together the legal grounds for wiretapping the suspected kidnappers.

Starting at 10 a.m. on May 15, according to a timeline provided to Congress by the director of national intelligence, lawyers for the National Security Agency met and determined that special approval from the attorney general would be required first.

For an excruciating nine hours and 38 minutes, searchers in Iraq waited as U.S. lawyers discussed legal issues and hammered out the "probable cause" necessary for the attorney general to grant such "emergency" permission.

Finally, approval was granted and, at 7:38 that night, surveillance began.

"The intelligence community was forced to abandon our soldiers because of the law," a senior congressional staffer with access to the classified case told The Post.

"How many lawyers does it take to rescue our soldiers?" he asked. "It should be zero."

The FISA law applies even to a cellphone conversation between two people in Iraq, because those communications zip along wires through U.S. hubs, which is where the taps are typically applied.

Now Congress is voting this week on the Democratic version of a bill to renew the Foreign Intelligence Surveillance Act that will make it harder to track possible suspects such as those involved in the kidnapping of U.S. soldiers in Iraq. Fox News reports:

The latest bill would require more warrants to eavesdrop on suspected terrorists.

Intelligence officials, for example, would have to get a warrant in advance if they want to eavesdrop on a suspected terrorist overseas who they think may be calling someone in the United States.

Democrats have fought Pres. Bush on the warrantless wiretap issue for several years now, covering warped political motivations under the guise of Constitutionality. Exactly which Americans are Democrats trying to safeguard here and what Constitutional right is more fundamental that the right to life?

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Comments

[Jim]

Amy, the Fox News article suggests it was problems in the Justice Department, not FISA, that caused the delay.

----------------------------------------------------------

As the following schedule for May 15 shows, the investigators were delayed from tracking the suspects:

— At 10 a.m., U.S. officials came upon the lead that suggested they may have located the suspected kidnappers and needed to access "certain communications."

— At 10:52 a.m., the National Security Agency notified the Justice Department that under the existing FISA law at the time, a warrant was needed to eavesdrop because the communications passed through the U.S. infrastructure.

But here's where the argument differs. According to FISA bill opponents, at 12:53 p.m., lawyers and intelligence officials began working to confirm probable cause to identify the kidnappers as foreign insurgents and therefore a legitimate target. However, the Democratic staff reports that the NSA general counsel at that time said the FISA requirements had been met for collecting "communications inside the U.S."

Bill opponents say that at 5:15 p.m., the lawyers established probable cause and Justice Department officials began the process of requesting emergency authority to conduct surveillance of the suspected kidnappers. Democratic staffers questioned why it took more than five hours for Bush administration lawyers to wrangle over the legal underpinnings of their request.

In the effort to get approval for emergency surveillance, Justice Department officials had to track down then-Attorney General Alberto Gonzales, who was in Texas, and relay the facts that had been established. The memo from Democratic staff notes that this became necessary because the three officials with the Justice Department authority to grant permission to conduct emergency surveillance were unavailable.

A fourth — the assistant attorney general in charge of the national security division — had been granted authority by Congress to authorize surveillance, they say, but because the Justice Department hadn't changed its internal regulations, the assistant attorney general was prevented from granting the approval.

— At 7:18 p.m., Gonzales approved the emergency surveillance based on their certainty that the court would grant the warrant retroactively within the week

— At 7:38 p.m. — nine hours and 38 minutes after the officials got a lead in the search, the intercepts of the suspected kidnappers began.

"Because of the Bush administration's bungling, minutes turned into hours. And during those hours, the intelligence community waited for information on the three missing soldiers ... Now, the Republicans want to lay this at the feet of Congress?" reads the memo.

[Amy Proctor]

I've read the Democratic diversion of blaming Bush. The point is that Bush has been criticized as a lawbreaker for supposedly "illegal wiretaps" for 2 years or more by Democrats who INSIST he not be able to pass legisltation for warentless wiretaps. THEY insist on warrants, which as we see in this case, allows the bad guys to do their deeds and hide the evidence. Or get away with murder altogehter.

When you have the federal government involved in obtaining warrants, of course it'll take 10 hours. This is precisely why Pres. Bush was using his executive power to obtain wiretaps WITHOUT warrants.

The Democrats have been ruthlessly promoting their "Bush spies on the American people" lie for 2 years and it is their gutless persistence on this issue, supposedly so "innocent Americans" won't have big brother listening to their phone calls or looking through their underwear drawers, is why a warrent was needed to spy the hell on al-Qaeda. I thank God it wasn't my husband who had been abducted and murdered because of this outdated law.

[Amy Proctor]

And how dare these spineless Democrats blame BUSH for not using his executive power and demanding a warantless wiretap. This had NOTHING to do with a Bush bumgle, it has do to with the fact that this is what it looks like when the Democrats get what they want. And they have a track record here.

Whether abortion under the guise of "Constitutional privacy" or FISA under the guise of Constitutionality, their abandonment of common sense and appreciation for life in exchange for moral stupidy causes people's deaths. They should be ashamed... and now they want to pass legislation that protects the rights of terrorists even MORE. Wow, they sure know how to support the troops.

I have total contempt for the Democratic party and their godless ideologial policies.

[Jim]

Amy, a federal judge ruled back in January or February that what Bush was doing was illegal. And FISA does allow for blanket warrants and allows for retroactive approval within 3 days. Finally, in the last several years, only one warrant request was rejected by the court overseeing FISA.

Sorry, Amy, I have contempt for people like you (a liar in my book) who knowingly misstate the facts and the law for political purposes.

[jennyW]

>> I have total contempt for the Democratic party and their godless ideologial policies. <<

As do I, Amy. If their lips are moving, they are lying. If their lips are not moving, they are still lying. The libs are dedicated to promoting the "culture of death" ... to them, human life is the LEAST sacred kind of life.

[Pedro Queso]

Amy, U.S. soldiers offer their lives to protect American freedoms.

We don't discard American freedoms to protect the lives of U.S. soldiers.

How can we ask the Iraqis to be as free as us when people like you want to discard the freedoms that have made America the beacon of freedom for the world?

[CalPatriot]

During WW II we spied like crazy, it helped us win the war. In 2001-2007, the WOT campaign, Democrats hold the best policy is for Republicans not to spy ( as Clinton’s ultimate disbandment of FBI,NSA, CIA unity) so that anyone running a war, which is always the Republicans, will lose. Now you know the secret. Hillary had, according to reports, 900 FBI files under her bed. Yet, no Democrat peeped on that one issue. Bill Clinton disbanded the CIA of international duties, to spy on domestic duties –mainly republicans. He used the IRS to focus on republicans that criticized his policies of giving nuclear weapons technology, which included advanced secret rocket technology to carry WMD, to Asian countries. This was all part of his “giving up treasures of the west” policy. He believes that giving away military defense secrets to the enemy will allow them to act nice to you. Yes, we know he smoked pot, but did not inhale. That never stopped rogue Chinese military officials from threatening to nuke the USA west-coast with our own technology we sold them. So the lesson here is, give a wiretap capability to the Dems, and see happiness; allow the wiretapping capabilities to the Repubs, see hysteria – all in the left-wing media.

[Amy Proctor]

Just a few points…

1) Judge Anna Diggs Taylor is a liberal Jimmy Carter appointee who sided with the ACLU against the President’s Terrorist Surveillance Program. In her statement she said,

"There are no hereditary Kings in America and no powers not created by the Constitution. So all 'inherent powers' must derive from that Constitution. It was never the intent of the framers to give the president such unfettered control, particularly where his actions blatantly disregard the parameters clearly enumerated in the Bill of Rights. The three separate branches of government were developed as a check and balance for one another."

2) Opinion and legal experts pounced on the decision as bad law:

Wall Street Journal Editorial: "[Judge Taylor] manages to forget or overlook that no one is being denied his liberty and no evidence is being brought in criminal proceedings based on what the NSA might learn through listening to al Qaeda communications. The wiretapping program is an intelligence operation, not a law-enforcement proceeding. Congress was duly informed, and not a single specific domestic abuse of such a wiretap has yet been even alleged, much less found. ... Unlike Judge Taylor, Presidents are accountable to the voters for their war-making decisions, as the current White House occupant has discovered. Judge Taylor can write her opinion and pose for the cameras -- and no one can hold her accountable for any Americans who might die as a result." (Editorial, "President Taylor," The Wall Street Journal, 8/18/06)

James Robbins, Senior Fellow, American Foreign Policy Council: "[The ruling] in essence extends First Amendment privileges to foreign terrorists living abroad, so long as they are talking to someone in the USA. This is not only an unprecedented interpretation of the rights of reporters, it also establishes hitherto unimagined avenues of privileged communications for terrorists." (James Robbins, Op-Ed, "NSA Program Is Vital Tool," USA Today, 8/18/06)

David Rivkin, Legal Expert: "It is an appallingly bad opinion, bad from both a philosophical and technical perspective, manifesting strong bias." (Adam Liptak and Eric Lichtblau, "U.S. Judge Finds Wiretap Actions Violate The Law," The New York Times, 8/18/06)

Bryan Cunningham, Former Federal Prosecutor: "I wouldn't accept this utterly unsupported, constitutionally and logically bankrupt collection of musings from a first-year law student, much less a new lawyer at my firm." (Bryan Cunningham, "Amateur Hour?" National Review Online, 8/18/06)

I believe the government won on appeal and the ruling was overturned. As recently has July 2007,
federal judges were still ruling to allow the wiretap program.

3) The president’s wiretap program does not spy on Americans but has the prerogative to tap into calls FROM suspected terrorists outside the U.S. TO Americans.

4) The Justice Department in Jan. 2006 posted THE NSA PROGRAM TO DETECT AND PREVENT TERRORIST ATTACKS: MYTH V. REALITY

Myth: The NSA program is illegal.

Reality: The President’s authority to authorize the terrorist surveillance program is firmly based both in his constitutional authority as Commander-in-Chief, and in the Authorization for Use of Military Force (AUMF) passed by Congress after the September 11 attacks.

• As Commander-in-Chief and Chief Executive, the President has legal authority under the Constitution to authorize the NSA terrorist surveillance program.

􀂾The Constitution makes protecting our Nation from foreign attack the President’s most solemn duty and provides him with the legal authority to keep America safe.

􀂾It has long been recognized that the President has inherent authority to conduct warrantless surveillance to gather foreign intelligence even in peacetime. Every federal appellate court to rule on the question has concluded that the President has this authority and that it is consistent with the Constitution.

􀂾Since the Civil War, wiretaps aimed at collecting foreign intelligence have been authorized by Presidents, and the authority to conduct warrantless surveillance for foreign intelligence purposes has been consistently cited and used when necessary.

• Congress confirmed and supplemented the President's constitutional authority to authorize this program when it passed the AUMF.

􀂾The AUMF authorized the President to use “all necessary and appropriate military force against those nations, organizations, or persons he determines planned, authorized, committed, or aided in the terrorist attacks that occurred on September 11, 2001.”

􀂾In its Hamdi decision, the Supreme Court ruled that the AUMF also authorizes the “fundamental incident[s] of waging war.” The history of warfare makes clear that electronic surveillance of the enemy is a fundamental incident to the use of military force.

• A crucial responsibility of the President—charged by the AUMF and the Constitution—is to identify enemies who attacked us, especially if they are in the United States ready to strike against our Nation.

􀂾We are at war, and al Qaeda is not a conventional enemy. Since the September 11 attacks, it has promised again and again to deliver another, even more devastating attack on America. In the meantime, it has killed hundreds of innocent people around the world through large-scale attacks in Indonesia, Madrid, and London.

􀂾Al Qaeda’s plans include infiltrating our cities and communities and plotting with affiliates abroad to kill innocent Americans.

􀂾The United States must use every tool available, consistent with the Constitution, to prevent and deter another al Qaeda attack, and the President has indicated his intent to do just that.

Myth: The NSA program is a domestic eavesdropping program used to spy on innocent Americans.

Reality: The NSA program is narrowly focused, aimed only at international calls and targeted at al Qaeda and related groups. Safeguards are in place to protect the civil liberties of ordinary Americans.

• The program only applies to communications where one party is located outside of the United States.
• The NSA terrorist surveillance program described by the President is only focused on members of Al Qaeda and affiliated groups. Communications are only intercepted if there is a reasonable basis to believe that one party to the communication is a member of al Qaeda, affiliated with al Qaeda, or a member of an organization affiliated with al Qaeda.

• The program is designed to target a key tactic of al Qaeda: infiltrating foreign agents into the United States and controlling their movements through electronic communications, just as it did leading up to the September 11 attacks.

• The NSA activities are reviewed and reauthorized approximately every 45 days. In addition, the General Counsel and Inspector General of the NSA monitor the program to ensure that it is operating properly and that civil liberties are protected, and the intelligence agents involved receive extensive training.

Myth: The NSA activities violate the Fourth Amendment.

Reality: The NSA program is consistent with the Constitution’s protections of civil liberties, including the protections of the Fourth Amendment.

• The Supreme Court has long held that the Fourth Amendment allows warrantless searches where “special needs, beyond the normal need for law enforcement,” exist. Foreign intelligence collection, especially in a time of war when catastrophic attacks have already been launched inside the United States, falls within the special needs context.

• As the Foreign Intelligence Surveillance Court of Review has observed, the nature of the “emergency” posed by al Qaeda “takes the matter out of the realm of ordinary crime control.”

• The program easily meets the Court’s reasonableness test for whether a warrant is required. The NSA activities described by the President are narrow in scope and aim, and the government has an overwhelming interest in detecting and preventing further catastrophic attacks on American soil.

Myth: The NSA program violates the Foreign Intelligence Surveillance Act (FISA).

Reality: The NSA activities described by the President are consistent with FISA.

• FISA expressly envisions a need for the President to conduct electronic surveillance outside of its provisions when a later statute authorizes that surveillance. The AUMF is such a statute.

• The NSA activities come from the very center of the Commander-in-Chief power, and it would raise serious constitutional issues if FISA were read to allow Congress to interfere with the President’s well-recognized, inherent constitutional authority. FISA can and should be read to avoid this.

Myth: The Administration could have used FISA but simply chose not to.

Reality: In the war on terrorism, it is sometimes imperative to detect—reliably, immediately, and without delay—whether an al Qaeda member or affiliate is in contact with someone in the United States. FISA is an extremely valuable tool in the war on terrorism, but it was passed in 1978 and there have been tremendous advances in technology since then.

• The NSA program is an “early warning system” with only one purpose: to detect and prevent the next attack on the United States from foreign agents hiding in our midst. It is a program with a military nature that requires speed and agility.

• The FISA process, by design, moves more slowly. It requires numerous lawyers, the preparation of legal briefs, approval from a Cabinet-level officer, certification from the National Security Advisor or another Senate-confirmed officer, and finally, the approval of an Article III judge. This is a good process for traditional domestic foreign intelligence monitoring, but when even 24 hours can make the difference between success and failure in preventing a terrorist attack, a faster process is needed.

Myth: FISA has “emergency authorizations” to allow 72-hour surveillance without a court order that the Administration could easily utilize.

Reality: There is a serious misconception about so-called “emergency authorizations” under FISA, which allow 72 hours of surveillance without a court order. FISA requires the Attorney General to determine in advance that a FISA application for that particular intercept will be fully supported and will be approved by the court before an emergency authorization can be granted, and the review process itself can and does take precious time.

• The Justice Department does not approve emergency authorizations without knowing it will receive court approval within 72 hours.

• To initiate surveillance under a FISA emergency authorization, it is not enough to rely on the best judgment of our intelligence officers alone. Those intelligence officers would have to get the sign-off of lawyers at the NSA that all provisions of FISA have been satisfied, then lawyers in the Department of Justice would have to be similarly satisfied, and finally, the Attorney General would have to be satisfied that the search meets the requirements of FISA. The government would have to be prepared to follow up with a full FISA application within 72 hours.

• A typical FISA application involves a substantial process in its own right: The work of several lawyers; the preparation of a legal brief and supporting declarations; the approval of a Cabinet-level officer; a certification from the National Security Advisor, the Director of the FBI, or another designated Senate-confirmed officer; and, finally the approval of an Article III judge.

• The FISA process makes perfect sense in almost all cases of foreign-intelligence monitoring in the United States. Although technology has changed dramatically since FISA was enacted, FISA remains a vital tool in the war on terrorism -- one that we are using to its fullest and will continue to use against al Qaeda and other foreign threats.

• But the terrorist surveillance program operated by the NSA requires maximum speed and agility to achieve early warning, and even a very brief delay may make the difference between success and failure in detecting and preventing the next attack.

<A href="http://article.nationalreview.com/?q=OTQ2NmE3MGMwZDMyYzAwN2E4NjQ4MjU2YWY1NzhlOTc=">Good commentary

[Goat]

Amy, a smidgeon of good news on those three soldiers, I saw on one of the Milblogs that we had recovered weopons and other personal items from the men in a recent cache discovery. I know it is of little consolation but every little bit helps. I am hoping all this semi-treasonous behavior by the Democrats will come back to haunt them next year.

[calPatriot]

"There are no hereditary Kings in America and no powers not created by the Constitution."

What does that mean? “no powers not created” – is that allowed in the English language? Does she mean there are no legal interpretations allowed to oppose the legality of The Constitution of the United States of America? That sentence is clearer. Her further sentences do sound clear, however, I cannot make it out.

Yet, that is a grammatically incorrect use of the English Language. What does "no powers not created by the Constitution" mean? It sounds like Fuzzy yellow turtle sky scraper toilet paper square-boxed inherent paradoxical applied jumbo shrimp. What does she mean? I blame it on the failure of the USA educational system she apparently received. We have the CIA, the NSA and the FBI which are “totally” opposed to the Bill of Rights. Anna Diggs Taylor needs possibly to go to school, or have the school of law revoke her license. During War, traditionally, both WW I and II, we suspended certain rights in the bill of rights to defend our nation. Apparently, Judge Anna Diggs Taylor believes USA history began during the Clinton administration. I guess she believed Bill Clinton was the first president of the United States of America. She is a cultural constructivist.

[Jo]

So Jim, you think its okay to wait 3 days for a warrant to listen in on conversations that "might" be routed through the US while americans are dying?

Geez - how wonderful!

(gag)

[Jim]

Jo, the 3 days is retroactive, not prospective.

And Amy, here's the decision I'm talking about (which has not been publicly released), which apparently happened in January 2007.

Here's what Newsweek says:

The order by a judge on the top-secret Foreign Intelligence Surveillance Act court has never been publicly acknowledged by administration officials—and the details of it (including the identity of the judge who wrote it) remain highly classified. But the judge, in an order several months ago, apparently concluded that the administration had overstepped its legal authorities in conducting warrantless eavesdropping even under the scaled-back surveillance program that the White House first agreed to permit the FISA court to review earlier this year, said one lawyer who has been briefed on the order but who asked not to be publicly identified because of its sensitivity.

The Diggs decision was stayed and reversed on appeal on procedural grounds. The appellate court did not review the merits of the case.

[grumpy old fart]

"So Jim, you think its okay to wait 3 days for a warrant to listen in on conversations that "might" be routed through the US while americans are dying?"

Jo, you obviously have no idea what you are talking about. Do you understand the work "retroactive"? Please get your face out of Fox News and read. As the bumper sticker says: "THINK, IT'S PATRIOTIC".

[grumpy old fart]

"During War, traditionally, both WW I and II, we suspended certain rights in the bill of rights to defend our nation."

In the case of an ill defined and perpetual war, what do you propose?

[CalPatriot]

You were right Amy, it backfired, although they spin it a certain way. Now since the insensitive Dems condemned Turkey, the Turkish state care less about voting in a go-ahead to Invade Iraq.

"Pelosi backtracks on Armenia ‘genocide’ bill"
By Daniel Dombey in Washington

Published: October 17 2007 20:16 | Last updated: October 18 2007 01:30

Source: http://www.ft.com/ link to long to post. Drudge has it linked at this moment.

"In the case of .... what do you propose?"

A more cognitive constructed question: you can use analysis, synthesis or normative metalinguistics to set it up properly. Otherwise, no-one knows, at least I do not, what you are talking about.

[Johnny]

The people decrying tactical surveillance of communications systems in order to protect the American people from terrorists are the same people screaming at the top of their lungs when we get attacked that the government should have done more to protect us.

Your Constitutional rights mean nothing if you are dead.

Ya better go back and study a bit of American history, especially the war between the states. Curtailing/suspending certain rights is often necessary in war.

[grumpy old fart]

Cal,

If you don't have an answer, you don't have an answer. But please, don't play dumb. Or ARE you playing......?

[grumpy old fart]

"Curtailing/suspending certain rights is often necessary in war."

Have all of you bought into this excuse for slowing shredding the constitution?

When will this "war" be over exactly?

[The Griper]

grumpy,

"Curtailing/suspending certain rights is often necessary in war."

Have all of you bought into this excuse for slowing shredding the constitution?

When will this "war" be over exactly?"

are you saying that it is not a fact that rights have been curtailed in this country during war? a good arguement could be made that during one war the only rights we had was the right to fight a war.

as for your question of when will the war be over, the answer to that question can be answered by a grade school student. it is over just like any war is, when victory is achieved by one side or the other and no sooner or later.

[grumpy old fart]

"...that question can be answered by a grade school student. it is over just like any war is, when victory is achieved by one side or the other and no sooner or later."

Then you should have no problem answering. How will we know when "victory" is achieved?

[The Griper]

grumpy,
"Then you should have no problem answering. How will we know when "victory" is achieved?"

that question is easier to answer than your first question. in the same manner as every victory is achieved, by the surrender of the side that loses in some manner or means. that is how victory is always determined in war.

[Amy P]

I think it's hilarous liberals have to come to the entries that aren't about progress in Iraq to ask how to define victory! Go go some of my other posts that detail the drop in deaths and rise in services and security and ask there!

Victory is currently being achieved in Iraq. If you want to know what victory looks like, it looks like Iraq.

[grumpy old fart]

Griper,

Now who exactly is it that's going to surrender so that we can declare victory?

Amy,

The question wasn't about how we're doing in Iraq, but about what constitutes "victory". Your ditto heads are eager give up their civil rights because we are in a "war", claiming that we always (and should) do that in a time of war. They say we can have our rights back when we win the "war" is over.

So, the obvious question is; when will the "war" be over?

Some of your more simple minded friends think there will be a formal surrender, with some ceremony on an aircraft carrier no doubt.

But you and I know better, don't we Amy?

[The Griper]

grumpy,

war is not a game of football or basketball where there is a set time to win or lose. so the question of "when" is always unknown until it occurs. that has been the nature of war since its inception as a means to achieve whatever ends each side of the war decide.

as to the enemy, if you cannot name the enemy in this war then it serves no purpose of telling you unless you can convince me that war is not being waged and people are not dying in it. if there be a war and people are dying in it i do not need to name the enemy because you already know.

[The Griper]

"Some of your more simple minded friends think there will be a formal surrender, with some ceremony on an aircraft carrier no doubt."

as for us "simple-minded" friends, nice try, grumpy, to insult our intelligence. you only revealed your own lack of intelligence by that remark.
i don't know where you learned of war but whoever taught you that surrender needs to a formal act did not teach you much about the principle of surrendering.

but with that characteraization of amy's friends you lost my respect.