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September 28, 2007

Big: Old FISA Law Delayed Hunt For Kidnappers Of American Soldiers
Update: Video Report Added

Video: Now at Hot Air.

I'll just bulletpoint:

Last May, Iraqi terrorists kidnapped three American soldiers.

American intelligence officials searched for cyber-signals about the kidnapping... and actually found them. They found the kidnappers talking to each other on-line.

However, they had to stop listening because the signals were passing through an American-based server and under the law that meant there could be no eavesdropping without a warrant.

So they stopped listening in on foreign terrorists holding kidnapped American soldiers.

For ten hours, officials worked to get "emergency authorization" to resume eavesdropping.

This then required the personal okay of AG Gonzales, who couldn't be reached for two hours.

So a 12 hour gap after the kidnappers had been discovered.

The law has been changed to expressly permit eavesdropping in this situation, and some Democrats such as Rep. Reyes (D) are arguing for a rollback to the previous rule.

One of those kidnapped soldiers, I'm told, was later found dead and mutilated. Whether the gap in eavesdropping may have averted this I don't know, and perhaps no one will ever know.

Two of the kidnapped soldiers, Larwyn tells me, are still unaccounted for. Again: What might have been said in that 12 hour gap that could have tipped off US forces to their location? We don't know.

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.

Perhaps they should strive to craft more realistic laws that don't rely on benign lawbreaking to make them function properly.

More: From Powerline.

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.

If I'm wrong, I'll eat it with an admission, as I usually do. But I don't think I am.

Correction: They didn't start eavesdropping and then stop; they never started at all while they filled out the paperwork for an "emergency authorization."

If something is of an "emergency" nature, is paperwork really what you want people doing?

Another print story from USAToday.

It took time (to begin the tap)," McConnell said, because the Foreign Intelligence Surveillance Act (FISA) required intelligence agents to first demonstrate to the U.S. attorney general that the target was likely an agent of a foreign power.

Surveillance of foreigners overseas does not always require such an assurance. However, many foreign calls pass through U.S. telecommunications networks, requiring the attorney general's approval.

McConnell called the requirement, which has been temporarily eliminated, "burdensome."

Thanks to Drew for putting me some fucking information.

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posted by Ace at 09:27 PM

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