Comments (20)

jeffgee wrote on September 28, 2007 9:46 AM:

Isn't FISA approval retroactive if they want it to be? That alone made all of Bush's arguments for abolishing the FISA courts moot. Sounds like another power grab by the Dictadecider.
Heh, heh, it'd be easier that way.

Clark wrote on September 28, 2007 9:49 AM:

Why in the world does the FISA law have any jurisdiction in a theater of war? It has always been my (perhaps mis-guided) understanding that NSA is authorized to steal signals from the entire world, sans the U.S..

sammy wrote on September 28, 2007 10:04 AM:

jeffgee,

Yes: surveillance conducted under FISA can be run for up to 72 hours before the FISA court approves them.

Su Port Ourtroops wrote on September 28, 2007 10:05 AM:

"The delay resulted in the death of one of the kidnapped soldiers."

This is how republicans support our troops.

cf wrote on September 28, 2007 10:05 AM:

Note, however, that the AP article itself -- the headline and the way the issue is framed -- is not careful to distinguish between the FISA complaints made by the Bushies and the actual way the scenario played out. It reads a bit like the long delay was the sort of thing they hoped to solve by bypassing FISA, rather thsn proof that the argument was bogus.

moondancer wrote on September 28, 2007 10:14 AM:

I don't think FISA applies neither in a war theater nor outside US.
Moot, because it's Howard Dean's fault.

Jolly Ranchero wrote on September 28, 2007 10:18 AM:

McConnell telling lies? That's unpossible!

Dana Peroxide has her work cut out for her on this one. I'm sure the AP is just a bunch of left-wing loons making shit up.

Anonymous wrote on September 28, 2007 10:27 AM:

Maybe I'm reading this wrong but it doesn't appear that a "formal request" to do surveillance was actually made until 5:15 p.m. on May 15. The 5 hours of lawyer talk doesn't seem to have delayed anything since no "formal request" was on the table.

If anyone, it appears the NSA dithered from 10 am to about 5:15 pm -- going through some sort of "soft confirmation" process before making the "formal request" at 5:15 pm.

What was the whole purpose of the 10am - 5:15 pm machinations?

Egypt Steve wrote on September 28, 2007 10:35 AM:

yeah, this is fishy. Why would they need a FISA warrant to conduct military surveillance in Iraq??? Something seems garbled here. Or is the claim that cell phone calls or emails used by the kidnappers were routed thru the US? Is that why a FISA warrant thought necessary??

tomH wrote on September 28, 2007 10:38 AM:

It is true that one of the three soldiers was found dead a few hours later. But I'm not aware of any evidence that the delay in surveillance caused his death. If you're going to assert it so matter of factly, could you furnish some evidence?

M M wrote on September 28, 2007 10:40 AM:

So what was the novel legal question involved in surveiling foreign targets in a foreign country where we are at war?

Also:

"The delay resulted in the death of one kidnapped soldiers."

Spencer, you can't just throw out this unqualified sentence on its own without explanation or proof that the electronic surveilance would have guaranteed that soldier lived. I imagine you are trying to get these pieces out quickly but that is sloppy and inflamatory given the sensitive nature of the conclusion.

FMArouet wrote on September 28, 2007 10:48 AM:

Something is odd here. FISA would not need to be invoked for foreign intelligence activities directed against foreigners (i.e., the kidnappers) in Iraq.

Neither would any input at all be required from the DOJ. NSA has full legal authority to do pretty much anything it wants in such circumstances overseas, as does CIA. The various military intelligence services also have substantial authorities in a theater of war.

If communications between the kidnappers happened to pass through telecom switches or routers on U.S. territory, then the issue becomes more complex. But did NSA and DOJ know that was the case? Or was this particular effort a needle-in-the-haystack fishing expedition?

So the question becomes: when all was said and done, exactly what (voice and data) was collected and where was it collected? How was it identified and filtered? Oh yeah, and was any of the collected data of any relevance or use at all in tracking down the kidnappers?

McConnell's pattern of deception and misdirection is becoming tiresome. Will he be held to account for his serial lies to Congress?

The Conservative Deflator wrote on September 28, 2007 10:53 AM:

FISA has no place in a democracy such as ours. The 4th Amendment has served us well for over 200 years and these fascist creeps who think they know better than the Founding Fathers, what latitude they need in spying on people don't deserve to live in the United States of America.

With regard to Islamic terrorism, it is critically important to remember that the CIA and NSA are not part of the solution, they are part of the problem!

anon wrote on September 28, 2007 10:59 AM:

...Dana Peroxide has her work cut out for her...

Oh, please, she's going to say "I wasn't there for those meetings. I'll need to get back to you on that. Those meetings may have been classified for National Security reasons and we stand by our story except you and other reporters may be somewhat confused about the time line." That's no so hard.

editor wrote on September 28, 2007 11:27 AM:

Um, it took two hours to track down the AG who was at a public speaking engagement?

Oh, I see. His staff wouldn't interrupt his speech.

I wonder what Rudy thinks about that.

Dee Illuminati wrote on September 28, 2007 11:35 AM:

This is a situation where if the actionable intel warrants a dire event, that jury nullification is required as a litmus of actions.

I watched the Democrats answer the question of a "ticking bomb scenario" and was astonsihed that short of an after the fact statement by Joe Biden that the candidates did not identify the question for what it was, a lurid and insidious proposition more akin to sophistry than any real policy leadership statement.

What I see here that happened was that there was a dire deficiency in leadership, it is to say that in the spirit of 'good samaritan laws' that in a draconian situation there was no 'faith of good men' to stand up and lead. Lets not confuse leadership with management, or politicians.

But as a matter of 101 rhetoric and logic curriculum at any community college in this nation, gordian knots, Ontological arguments, and semantical quibbling should have been sufficient reason for somebody to stand forth and say: "while the generalization of fact and practice is appropo, and that contrary acts are taboo, in this circumstance an act is warranted, hence the term WARRANT!"

As it is morally repugnant, and statuatory illegal to eat humans, in lurid circumstances, Donners Pass, Uruguayan Air Force Flight 571, etc. but the fact that even under "The Custom of the Sea" there was acceptable circumstances for the morally incorrect.

As I read this article I see a wide difference in the letter of the law, and the spirit of the law. In short, if there was an actionable opportunity to intervene to save a life, then those whom delayed are subject to "Good Samaritan laws" where they failed to provide help, and conversely; FISA abuses under the guise of political suppression of opines concerning the wisdom of Executive decisions, or as the VP stated it in regard to the Plame case, unwarranted!

There ought to be an investigation into this incident and a healthy discussion about where the system failed, and that would most notably be in "leadership."

sailmaker wrote on September 28, 2007 11:51 AM:

They have 72 hours to get a retroactive warrent. If they can't organize their office staff to comply with this minimal requirement, they should not be governing.

moondancer wrote on September 28, 2007 1:10 PM:

Am I missing something? Isn't this a war zone? Why would it have to go any further than theater command? Warrants mean squat in a combat zone.
The military has the best surveillance satellites in the sky. I smell a CYA campaign here. Why was DOJ involved in this in the first place?
Besides the official story being a lie, there are big chunks of information being withheld. Until there is a more accurate view of the events, it seems impossible to make sense of this.

Paul J. Reber wrote on September 28, 2007 2:12 PM:

My first reaction was wtf!? too.

I'm trying to imagine a scenario where this makes a shred of sense. Here's a guess.

The soldiers are kidnapped in Iraq. At some point in the process of figuring out where they are, some evidence pops up that the kidnappers might be in contact with somebody in the US. So they wanted to tap that phone, but perhaps the evidence was pretty flimsy or maybe it was a reporter's phone line. Feeling bound to attempt to follow FISA, the investigators spent several hours trying to decide if the evidence was strong enough to risk going ahead and justifying it up to 72 hours later. Eventually, they decided they needed the AG himself to rule on this, futher delaying things.

I've tried to be as generous as possible in this possible scenario, but I think it makes the investigators look like idiots anyway.

But here's a way to make it interesting. Suppose the investigators actually had no evidence at all. All they had was a list of reporters who they believed had at some point had contact with terrorists (e.g., the reporters had been sought out by the terrorists to try to get their story told). Now you've got a "ticking time bomb" scenario where the possible response is "tap the phones of every reporter we know to see if anybody is talking to them."

That's an interesting scenario because it really puts the short-term goal (rescue) in conflict with a very abuseable policy (what if they decided to tap all the reporters phones all the time?). Also, it's the kind of policy question you might even prefer not to have out in the open. If the FISA court publicly agreed to a "tap them all" policy under some circumstances, the terrorists might learn not to use tappable phones in those situations.

But I'm guessing. Maybe they're just morons.

Sue Richart wrote on September 28, 2007 5:27 PM:

Even Paul Reber's scenario doesn't make sense; NSA has had the right for decades to record a conversation with one side being Americans if there is a viable threat involved up to 72 hours. In the past, with competent Attorney Generals, the time limit wasn't an issue. Personnel, who monitored conversations under NSA guidelines, were taught this and reminded of this rule every six months while they held a those positions.

What most likely happened is they are so confused about that is legal and what isn't, because they chose to thumb their noses at the law, the Congress, and the courts at the start, they didn't know what to do.

That, and I'm wondering if some of them now realize they did violate the Constitution in prior situations and are afraid of going to jail at some time in the future.