Apparently, it's a very small world when it comes to telecommunications. Two people having a cell phone conversation in Iraq are likely to have that call routed through American telecom infrastructure, where it could be intercepted by U.S. intelligence agencies. But under the old FISA law (which the Democrats are trying to restore and further tighten this week), they'd need a warrant. It could be granted retroactively, but first someone has to stick their neck out and grant emergency permission based on the belief that the warrant will later be approved. Think bureaucrats and political appointees are eager to do that?
The problem isn't entirely theoretical, according to a New York Post story. On May 12, while the strict FISA rules were still in effect, al Qaeda gunmen in Iraq attacked a U.S. outpost, killing four soldiers and taking three others — Spc. Alex Jimenez, Pfc. Byron Fouty, and Pfc. Joseph Anzack Jr. — hostage. The subsequent frantic search led to information possibly identifying the kidnappers. U.S. intelligence agents asked for permission to intercept communications that might lead to the kidnappers and their captives:
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."
Democrats supporting the tightening of FISA denounced the release of the story as a cynical attempt to politicize the search for the soldiers. Fox News has a fair and balanced presentation of both sides, along with a detailed timeline. The Democrats' House Intelligence Committee staff argued that it shouldn't have taken NSA lawyers five hours to determine that they had probable cause, and it wouldn't have been necessary to track down Attorney General Alberto Gonzales in Texas if three other Justice Dept. officials authorized to approve the request had been available.
Granted, five hours seems like a long time for lawyers to hem and haw over probable cause. But consider the climate. These people knew there was an ongoing surveillance firestorm, complete with leaks to the New York Times, congressional hearings, lawsuits, endless political posturing, and threats of legal action. If you were an NSA attorney, how quickly would you stick your neck out and say, "I recommend going ahead, and I guarantee the FISA court will retroactively approve"? If you were Gonzales or one of the assistant AGs, wouldn't you carefully review the material presented to you before authorizing the intercept, knowing it could land you in front of a hostile committee with the news cameras rolling?
The Democrats' argument amounts to saying that the restrictions wouldn't have been a problem if the officials involved had just acted without regard for the possible consequences — the consequences that those same Democrats have done their best to hang over the officials' heads.
It's nice that Democrats are so concerned about our privacy now, considering how hard they worked to undermine it for umpteen years (remember Carnivore, "key escrow" encryption, "Know Your Customer," and John Effin' Kerry's repeated attempts to further destroy financial privacy?). But do we have to protect the privacy of what amounts to battlefield communications by our enemies during a war?