This Wall Street Journal article popped up in the Early Bird (DoD-only restricted link here) today. It’s subscriber only but is an outstanding characterization of the absurd nature of some of the rhetoric around the New York Times’ “exposÃ©”.
And to correct an oft-cited misconception, there are no five-minute “emergency” taps. FISA still requires extensive time-consuming procedures. To prepare the two-to-three-inch thick applications for non-emergency warrants takes months. The so-called emergency procedure cannot be done in a few hours, let alone minutes. The attorney general is not going to approve even an emergency FISA intercept based on a breathless call from NSA.
For example, al Qaeda agent X, having a phone under FISA foreign surveillance, travels from Pakistan to New York. The FBI checks airline records and determines he is returning to Pakistan in three hours. Background information must be prepared and the document delivered to the attorney general. By that time, agent X has done his business and is back on the plane to Pakistan, where NSA can resume its warrantless foreign surveillance. Because of the antiquated requirements of FISA, the surveillance of agent X has to cease only during the critical hours he is on U.S. soil, presumably planning the next attack.
Even if time were not an issue, any emergency FISA application must still establish the required probable cause within 72 hours of placing the tap. So al Qaeda agent A is captured in Afghanistan and has agent B’s number in his cell phone, which is monitored by NSA overseas. Agent B makes two or three calls every day to agent C, who flies to New York. That chain of facts, without further evidence, does not establish probable cause for a court to believe that C is an agent of a foreign power with information about terrorism. Yet, post 9/11, do the critics want NSA to cease monitoring agent C just because he landed on U.S. soil?
If you can, read the whole thing. It is an op-ed, clearly, but does put forth points I’d have liked to make, and does so clearly and effectively.
Rob’s clearly concerned about similar issues as Enrevanche and a few other folks. I’m more worried about leakers and efficient killing of bad guys before they get to us; they’re more concerned about civil liberties they perceive as lost, particularly with the character of the current administration. If this book is any indication of the profession of one of them, then that one guy may want to seriously consider a different job…
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