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More on The Surveillance Timeline
What were administration lawyers debating for four hours after the NSA said it had sufficient basis for an emergency FISA warrant in the Iraqi insurgent-kidnapping case?
The three soldiers were reported missing on May 12, 20007. According to the timeline that Adm. Mike McConnell provided to the House intelligence committee, on May 14, the day before the emergency-surveillance controversy, intelligence officials approached the FISA Court for an amendment to a "then-current order" that had "some bearing" on the kidnapping crisis. The court apparently granted the amendment "that day." That, at least, suggests that even if the FISA Court had expanded, generically, FISA's protections to foreigners' communications passing through the U.S., the court was willing to work with the intelligence community to ensure that necessary surveillance could take place.
But presumably the NSA still didn't have enough material to satisfy probable cause on the insurgent communications on May 14, hard as that is to believe. The next morning, May 15, administration officials met to discuss surveillance, and by 12:53 a.m., the NSA's chief lawyer established that there was sufficient evidence for an emergency FISA warrant "for the remaining collection inside the U.S." By that, the lawyer means that the NSA needs a warrant to capture whatever insurgent communications pass through U.S. communication switches, and by about 1 pm, believed there was sufficient probable cause to justify an emergency warrant. It's likely that whatever other information the NSA had collected, it had done so through monitoring Iraq-to-Iraq communications that didn't pass through the U.S. or had gotten a measure of coverage through the aforementioned FISA Court amendment.
Yet according to the timeline, for the next four hours, administration officials "discussed legal and operational issues" about the surveillance. That's the critical delay, in all likelihood. Once NSA considers that probable cause for an emergency warrant has been met, why didn't the NSA contact the Justice Department's FISA office, the Office of Intelligence and Policy Review, and get an emergency warrant through to the Attorney General for his signature? McConnell told Congress that even with the emergency warrant in place, it still takes time to acquire sufficient material to meet an after-the-fact probable cause determination. But in a real emergency -- and the kidnapping of U.S troops in Iraq would seem to count as one -- it's hard to imagine why that review couldn't have occurred parallel to the surveillance, especially when the NSA says the lion's share of the probable cause is there.
OIPR got the NSA material at 5:15. It took another two hours to locate the Attorney General, who was in Texas to give a speech to U.S. attorneys. By then, however, it appears the crucial delay had already occurred.
Comments (15)
P J Evans wrote on September 28, 2007 11:06 AM:It took another two hours to locate the Attorney General, who was in Texas to give a speech to U.S. attorneys.
Why did it take them two hours to find the AG? Shouldn't they already have known which hotel he was in and where he was giving the speech? Isn't this a basic part of being a Cabinet officer?
ferd wrote on September 28, 2007 11:28 AM:This piece doesn't grab me. What are we talking about here?
In these perilous times, we need journalists of good will to write as if democracy depended on it.
Cinderella Ferret wrote on September 28, 2007 11:31 AM:Evidently the DOJ is not at War. It does strike me as quite fascinating that the Bush Administration, which regularly lobbies for Tort reform at the national level, and that serves the constituency who regularly rant about lawyers and judges, over lawyered this entire episode. This boils down to mismanagement and indecision with disastrous results for our Troops.
Anonymous wrote on September 28, 2007 12:11 PM:This Attorney General traveled with a full complement of security as well as politically appointed staff. That one of those people couldn't get his attention for a minute is galling, and further testimony to the thorougly disfunctional management inabilities of this Admin.
OneCrankyDom wrote on September 28, 2007 12:23 PM:This whole BS timeline is about trying to save the Warrantless Wiretap Law and to help get the Telcos their Immunity. You can safely assume this handy and timely leak came from the White House. It sure seems to have come out at just the right time doesn't it.
Anonymous wrote on September 28, 2007 12:24 PM:I wrote a essay on this last night at dkos if anyone is interested. http://www.dailykos.com/story/2007/9/28/12120/1933
This pretty much shows that these are the same folks who brought us Katrina. They just have different titles and names.
The federal government is a disaster area. At the admiistration level they are chosen with the one caveat that they support the administration at all costs (those who were promised jobs because they donated a bunch for elections are first priority).
That's it... no expertise in the job discription... nothing!!
At the lower levels we have those civil servants who are fired at the rate of 1.25% of those folks actually working outside civil service.
Until we can get some accountability (pretty much impossible) we will slide down to the bottom... losing our democracy... IMHO
Mary wrote on September 28, 2007 12:45 PM:Well the story just keeps changing, doesn't it?
First this was all taking place in August, wasn't it? Where there was the "excuse" of McNulty being gone. Now - not so much, it was the May kidnapping. So not a recent issue, but one months old.
Next a part of the story was that they needed to be able to have everyone and his brother be able to ok warrantless surveillances - bc look what happened when they were stuck with all this need, and an AG gone on a trip and the Sol Gen who had left the building. Now - looks like the problem was too many people involved in the process instead of too few. In any event - this newer version sure does not support in any way, shape or form the need to have any additional author-ees.
Then we get to the newer revelation that even though they knew how to get to the kidnapper's communications and that they were the kidnappers, they weren't sure they had "probable cause" sufficient for the court to buy into when the emergency tap was later reviewed, so they argued for hours instead of going ahead and listening in on communications they KNEW involved the kidnappers?
That doesn't wash either and the use of the statement "for the remaining collection inside the U.S." to make this seem like it was about the issue of a US Switching station for spoken communications that demonstrably involved a set of kidnappers not somehow being something that would get an emergency FISA OK doesn't wash either. Baker said that kind of things would take 5 minutes and IIRC didn't he also allude to the fact that US stations for foreign to foreign spoken communications was never an issue?
It sure sounds like they wanted to go trawling through lots of stored data like emails (that 'remaining collection inside the US' perhaps) and didn't really have any kind of minimization procedures that would work bc they wanted to started just firing out terms or names they were obtaining and they pretty much knew that their search approach and 'minimization' to only get foreign to foreign and/or only get things somewhat related to the terrorists were pretty reachy - so the time and continued surveillance was generating more specifics that they could put into their searches and/or better minimization procedures.
I'm thinking McConnell needs to be specifically held to account as to whether the probable cause aspect was really the minimization aspect or so closely tied as to be incapable of being discussed separately - was the issue not probable cause to listen in on the foreign to foreign communications, but rather probable cause to listen in, read or review all kinds of OTHER communicatiosn that were not being screened out through minimization procedures?
As to "why didn't the NSA contact the Justice Department's FISA office, the Office of Intelligence and Policy Review" under the new National Security Division reorganization, does OIPR still exist?
Or was part of the problem, too, the fact that in the reorganization, putting DOJ's counterterrorism, counterespionage and OIPR all together under on boss (Wainstein) there was far too much of a push to squeeze out competent attorneys and replace with loyal Bushies who would never speak out of turn no matter what crimes the Executive Branch was committing [ remember Wainstein's nomination was held up http://www.washingtonpost.com/wp-dyn/content/article/2006/09/12/AR2006091201402.html over refusal to turn over GITMO abuse documents that were in Wainstein's bailiwick at FBI]
- - so they were left with loyalists who, like Taylor and Goodling, would do just anything to serve THIS President, the one they had taken their Oath to, but who, when faced with having to actually act like lawyers and think through, draft and implement procedures that would be statutorialy and judicially and Constitutionally acceptabe, fell apart?
I dunno - but it still sounds to me, not so much that we aren't getting all the story as that we are not getting all the story AND parts of what we are getting are fibs and prevarications.
Apparently fibs and prevarications are one mission that the loyal Bushies in uniform that he's scattered through intel can accomplish.
Maybe the country can chip in for a banner.
mspicata wrote on September 28, 2007 12:45 PM:I don't even think they need the FISA Court. Here's what I find in FISA:
(1) Notwithstanding any other law, the President, through the Attorney General, may authorize electronic surveillance without a court order under this subchapter to acquire foreign intelligence information for periods of up to one year if the Attorney General certifies in writing under oath that—
Sailmaker wrote on September 28, 2007 12:46 PM:(A) the electronic surveillance is solely directed at—
(i) the acquisition of the contents of communications transmitted by means of communications used exclusively between or among foreign powers, as defined in section 1801 (a)(1), (2), or (3) of this title; or
(ii) the acquisition of technical intelligence, other than the spoken communications of individuals, from property or premises under the open and exclusive control of a foreign power, as defined in section 1801 (a)(1), (2), or (3) of this title;
(B) there is no substantial likelihood that the surveillance will acquire the contents of any communication to which a United States person is a party; and
(C) the proposed minimization procedures with respect to such surveillance meet the definition of minimization procedures under section 1801 (h) of this title; and
if the Attorney General reports such minimization procedures and any changes thereto to the House Permanent Select Committee on Intelligence and the Senate Select Committee on Intelligence at least thirty days prior to their effective date, unless the Attorney General determines immediate action is required and notifies the committees immediately of such minimization procedures and the reason for their becoming effective immediately.
(2) An electronic surveillance authorized by this subsection may be conducted only in accordance with the Attorney General’s certification and the minimization procedures adopted by him. The Attorney General shall assess compliance with such procedures and shall report such assessments to the House Permanent Select Committee on Intelligence and the Senate Select Committee on Intelligence under the provisions of section 1808 (a) of this title.
(3) The Attorney General shall immediately transmit under seal to the court established under section 1803 (a) of this title a copy of his certification. Such certification shall be maintained under security measures established by the Chief Justice with the concurrence of the Attorney General, in consultation with the Director of National Intelligence, and shall remain sealed unless—
(A) an application for a court order with respect to the surveillance is made under sections 1801 (h)(4) and 1804 of this title; or
(B) the certification is necessary to determine the legality of the surveillance under section 1806 (f) of this title.
(4) With respect to electronic surveillance authorized by this subsection, the Attorney General may direct a specified communication common carrier to—
(A) furnish all information, facilities, or technical assistance necessary to accomplish the electronic surveillance in such a manner as will protect its secrecy and produce a minimum of interference with the services that such carrier is providing its customers; and
(B) maintain under security procedures approved by the Attorney General and the Director of National Intelligence any records concerning the surveillance or the aid furnished which such carrier wishes to retain.
The Government shall compensate, at the prevailing rate, such carrier for furnishing such aid.
(b) Applications for a court order under this subchapter are authorized if the President has, by written authorization, empowered the Attorney General to approve applications to the court having jurisdiction under section 1803 of this title, and a judge to whom an application is made may, notwithstanding any other law, grant an order, in conformity with section 1805 of this title, approving electronic surveillance of a foreign power or an agent of a foreign power for the purpose of obtaining foreign intelligence information, except that the court shall not have jurisdiction to grant any order approving electronic surveillance directed solely as described in paragraph (1)(A) of subsection (a) of this section unless such surveillance may involve the acquisition of communications of any United States person.
If they can't organize their office staff to figure out that
1) they don't need a warrent for foreign to foreign taps
2) have 72 hours to get a RETROACTIVE warrent for domestic to domestic taps
3) (curtesey of the faux intel scare) as of August 7th have the same for foreign to domestic taps
then they should not be allowed to govern.
drational wrote on September 28, 2007 12:49 PM:Important Insert to the Timeline:
at 11:30 am Eastern time. James Comey testified in front of the SJC about the Hospital Signature mission of March 10, 2004.
Comey's testimony freaked them out and introduced the 4 hour legality debate. It also forced them to call gonzo instead of Clement.
http://www.dailykos.com/story/2007/9/28/114956/496
drational wrote on September 28, 2007 1:04 PM:Comey's SJC hearing started at 10 am central, right in the timeline when they were meeting to discuss further FISA issues.
Makes you wonder if they were already doing naughty things outside FISA and Comey's testimony made them want to clean things up.
drational wrote on September 28, 2007 2:37 PM:Look at the timeline
The result of the FISA warrant is to notify the FBI.
This is the FBI, not the CIA or NSA.
They were tapping Americans here in the US in response to the insurgent captures in Iraq.
Randy the Republican wrote on September 28, 2007 4:52 PM:Greetings Liberal Socialist Paranoid Pygmies and Rakers of Muck!!
I tried to read some of your liberal excrement in this thread and it makes me want to vomit. You "Soros" Dems need to get a life!
I really wish the election was tomorrow where we could see once a for all if we are a bunch of liberal vaginas or if we are a country with principal and backbone. I see none of the later in the modern Democrat Party.
Sailmaker wrote on September 28, 2007 7:07 PM:This letter they have given us seems deceptive - they could have started the surveillance they thought necessary and gotten a retroactive warrent from the FISA court. Why is there no mention of 'retroactive'? It seems like this timeline is saying that they dropped the surveillance ball for 1-3 days for bureaucratic reasons. If DoJ can not make full use of the laws we already have to work towards the goal of keeping track of terrorists, then that department should not be given greater powers with less oversight, as they were given on Aug. 6th.
Kent Mueller wrote on September 28, 2007 10:23 PM:Just approaching the FISA Court guarantees something like a 99.5 percent likelihood of approval. Some of us haven't forgotten that, statistically speaking, FISA is a rubber-stamp. As a courtesy, let's assume that that average is due to the NSA et al dotting their legal i's and crossing their constitutional t's and not to the state of FISA's lifelong dental condition and subsequent soft diet.
Cynically, it looks more like someone saw this as a test-case or at least a strawman against the then-recent FISA decision involving warrants and domestic telecom relays that jumble together in vast fiber-optic channels foreign-to-foreign, foreign-to-domestic and domestic -to-domestic phone calls and emails indiscriminately.
The telecoms could probably save themselves a world of heartache by better distinguishing between these classes of communication and acting accordingly, as could the NSA. The system knows immediately where every call is coming from and going to, that's in fact all it has to do, so how much harder is it to process the data more precisely and protect domestic-to-domestic communications from unconstitutional scrutiny. Unless of course somebody doesn't want to do that.
More generously, the timeline could just reflect bureaucratic sloth or a series of tiny turf wars. More troubling, it looks like there was at least one pre-existing domestic coverage issue involved here, not material and could be legitimate, but to hold up any foreign-to-foreign communication surveillance involved in this incident on that small facet seems...peculiar.
Most likely, McConnell just wants to keep the boss happy and go home at the end of the day.