October 15, 2007

How Many Lawyers Does It Take To Find A Captured GI?

The answer should be "none", but thanks to the FISA hiccup earlier this year, the question became very germane indeed. Charles Hurt reports at the New York Post that the restriction on communications through American telecom switches caused a ten-hour delay in NSA tracking for Corporal Alex Jimenez after his capture by terrorists in Iraq. The attorneys had to decide whether they had enough probable cause to wiretap terrorists talking abroad:

A search to rescue the men was quickly launched. But it soon ground to a halt as lawyers - obeying strict U.S. laws about surveillance - cobbled together the legal grounds for wiretapping the suspected kidnappers.

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 core part of the FISA upgrade focused on just this problem. The old FISA statute specifically referenced the requirement for warrants on anything passing through American switches. The FISA court correctly referred the issue back to Congress for resolution -- correctly, if one believes in judicial restraint -- and Congress punted it until forced to act in August.

Congress eventually eliminated the reliance on switch location as a means to determine the necessity of warrants. However, this points again to a problem that has been evident all along in the war on terror -- the tendency to treat it like CSI: Baghdad. War is not a crime in progress, and one cannot apply the processes of criminal prosecution to it. In war, one must have the ability to access the communications of the enemy if one wants to actually defeat them.

The entire notion that lawyers had to review a statute before military intelligence could pursue the captors of an American soldier in a theater of war is absurd and embarrassing. The proximate embarrassment in this case was Congress' delay in acting on the FISA problem the moment it arose. The larger embarrassment is that some still insist on applying civil court processes like habeas corpus on enemies captured abroad, which never -- never -- applied in any war we ever fought before, and that some use the same system to block intelligence efforts that have always been an accepted feature of war since the very beginning of the Republic.

No one got a lawyer when Washington's men captured the man who carried Benedict Arnold's offer of West Point to the British, and until this war no one seriously suggested that courts needed to issue warrants to listen to foreign enemies of the US talking to each other. It should take zero lawyers to chase down captors of American soldiers abroad in a theater of war, and any laws that add to that total should be immediately stricken from the record by Congress.


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Comments (47)

Posted by capitano | October 15, 2007 10:34 AM

It should take zero lawyers to chase down captors of American soldiers abroad in a theater of war, and any laws that add to that total should be immediately stricken from the record by Congress.

Why not? The Dems gave the jihadis the playbook -- just route your communications through the U.S. and you've bought yourself enough time to escape.

Somebody should ask Mitt.

Posted by RBMN | October 15, 2007 10:45 AM

Al-Qaeda doesn't even need traditional spies. They have Congressional Democrats on C-SPAN, and they have the front page of the New York Times. What more of a heads-up does a terrorist organization (in hiding) need?

Posted by Scrapiron | October 15, 2007 10:47 AM

Want to feed all national security information to the enemy? Brief the democrats in congress and it will get there faster than any normal communications. Wnat to clean up congress, get rid of all the lawyers and elect people that don't trust lawyers, 99% of the population will qualify.

Posted by gregdn | October 15, 2007 10:54 AM

FISA allows you to wiretap and then get the warrant within 72 hours.
This sounds fishy to me.

Posted by lexhamfox | October 15, 2007 11:01 AM

This sounds like BS.

The US Armed Forces employ plenty of lawyers... lots of them and since WWII they always have. It is not absurd or embarrassing to fight a lawful war. It is in fact the difference between us and most of our enemies. Ed bemoans the progress that has been made since the 18th Century. I think we are better off than when we were then.

There are other avenues via third party friendly intelligence services that could have been used until the process caught up. Those institutions have performed very well as has the existing FISA program. They need not have broken off tapping data while trying to get the proper reviews and authorization.

This story comes courtesy of a congressional staffer... not the Pentagon. I will suspend judgement on this until a more facts are known from a more reliable source.

Posted by jerry | October 15, 2007 12:00 PM

Judicial interference in military operations is a growing threat to national security. This interference is unconstitutional as Article II places all war making powers in the hands of the President as commander-in-chief. American Citizens are the only people who the Constitution invests with rights. From Article I, section 8, which gives Congress the power to “To establish an uniform Rule of Naturalization…”, it is unclear if even resident aliens have full Constitutional rights. They certainly can’t vote and at one time had to report their address to the government each January. To apply the Constitution to enemy combatants, indeed to unlawful combatants, makes no sense. If we are to apply this ruling uniformly then NSA should also be forced to seek a FISA warrant to eavesdrop on Chinese, Russian, North Korean or other adversary nation’s telecoms as well. The fact that nobody is asking for this makes me wonder if this all just Bush Derangement Syndrome driven.

Posted by swabjockey05 | October 15, 2007 12:22 PM

Jerry. Are you sure they are not using FISA warrents against the Chicoms, Norks and Ruskies?

Posted by starfleet_dude | October 15, 2007 12:29 PM

Here's what really happened:

"[I]nternal bureaucratic wrangling," and not court-based restrictions, were responsible for the lag time. "To get an emergency warrant, you just have to believe the facts support the application that someone is an agent of a foreign power," the source says. "That takes approximately five seconds to establish if you're going after an Iraqi insurgent."

Why did so much time elapse before the surveillance? Top Justice Department officials needed to approve the emergency order. But according to the source, Attorney General Alberto Gonzales was out of town; Deputy AG Paul McNulty had resigned already; Solicitor General Paul Clement "had left the building"; and the other responsible official, Assistant Attorney General Kenneth Wainstein was not yet authorized to approve the emergency order.

Posted by TokyoTom | October 15, 2007 12:30 PM

To be honest, Ed, I`m a hell of a lot more worried about MY OWN GOVERNMENT as a present threat to liberty than I am about religious partisans abroad: http://www.salon.com/opinion/greenwald/2007/10/15/amnesty/index.html

The "war on terror" has not only been one long war on our pocketbooks (kids` as well, as it is all still off-budget), but also a justification for further federal intrusion.

You seem to like a police state, though. Is that a conservative position? Can you find a single founding father who wouldn`t be screaming about what we see today?

Posted by Cycloptichorn | October 15, 2007 12:41 PM

Starfleet had the money info.

The whole narrative that McConnell is pushing, and that you faithfully reported Ed, is a lie. There wasn't a delay due to lawyer wrangling, but due to incompetent management of the DoJ and the Gonzales scandal.

Posted by Captain Ed | October 15, 2007 12:44 PM

Tokyo Tom,

Have you stopped beating your wife?

I love the assumption that I want a police state with absolutely no evidence of it. I want the NSA free to intercept foreign-to-foreign communications as we have done in every previous war ever fought without having to run to a lawyer to do it. I was pretty specific about that -- and you responded with a straw man and generalizations. Nice try.


The need to get those signatures comes from an impetus to layer criminal-justice processes on the war. That didn't start with the Gonzales fiasco, it started with a poorly-written FISA law and it got worse when Congress dallied on correcting it.

Posted by Cycloptichorn | October 15, 2007 12:55 PM


Bull. If the DoJ hadn't been in shambles, the signature needed would have been secured in about 5 minutes.

FISA isnt' poorly-written at all. In fact, it is quite clear and simple to understand.

I'm not against foreign-foreign communications tapping in the slightest. I'm completely for having a judge certify that what is being tapped is actually a foreign-foreign conversation. This is entirely the purpose of the FISA court and it worked quite well, for a long time - until Bush and Cheney, in January of 2001 - long before 9.11 - started plotting to change all that.

You ought to admit that this:

"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."

Was a lie. It didn't happen. They couldn't find anyone to sign the necessary form, b/c scandal had driven those who were authorized to do so out of office. That isn't a failure of the law in question but a failure of those who were appointed to enforce the law in question; a failure of the Bush administration. Spinning it any other way simply makes the person attempting to do so look ridiculous.

Posted by starfleet_dude | October 15, 2007 12:56 PM

Ed, it was the lack of organization at the DoJ that led to the delay, not FISA.

Posted by Captain Ed | October 15, 2007 1:05 PM

No, you both are incorrect. The intent of FISA was not to regulate foreign-to-foreign intercepts, it was to protect Americans from being wiretapped. In 1978, when FISA was written, Congress used American switches as a locus to determine whether FISA legislation had jurisdiction, which made sense at the time, because foreign-to-foreign communications never passed through American switches at the time.

They do now, however, and a FISA court ruled i January that Congress had to amend the language or all communications passing through those switches fell under FISA legislation -- which meant that for the first time, the NSA had to get warrants on ALL of its taps, even foreign-to-foreign. The administration asked Congress to address the problem, but they couldn't be bothered until August.

That's why they had to go looking for a lawyer in the first place. That's the point of the issue. The August rewrite of FISA solved the problem, but in May, they had to follow the court's ruling in the absence of Congressional action to correct the problem.

Posted by Cycloptichorn | October 15, 2007 1:13 PM


How is it determined, and by who, that a call is foreign-foreign instead of being domestic-domestic or domestic-foreign, now that the switches are mostly located here?

It would seem to me that at the end of the day, the FISA court makes this determination. And, you're still missing the point - nobody disagrees that foreign-foreign wiretaps should be allowed without warrants. The point in this case is that, in the event of an emergency, you don't have to wait for the warrants. The allegation in the article was that US soldiers were hurt in some way b/c we had to wait for warrants.

That story has no basis in reality; there were provisions in the original FISA law to bypass such requirements in emergency situations, even in light of January's ruling. Those provisions were not used, and the new restrictions are being blamed; in fact, the restrictions would not have made a difference if the DoJ could have found ONE person to sign ONE piece of paper, but due to their own internal problems, they couldn't.

Was FISA reform necessary in August, due to the new ruling? Undoubtedly. I haven't heard any Dems calling for the August reform to be repealed in toto. But, to blame the FISA bill for screwups on the part of the DoJ is beyond ridiculous.

Posted by jerry | October 15, 2007 1:18 PM


Did Bush and Cheney plot to overturn FISA before or after they made the decision to blow up the World Trade Center and the Pentagon?

Posted by starfleet_dude | October 15, 2007 1:20 PM

No, you both are incorrect. The intent of FISA was not to regulate foreign-to-foreign intercepts, it was to protect Americans from being wiretapped. In 1978, when FISA was written, Congress used American switches as a locus to determine whether FISA legislation had jurisdiction, which made sense at the time, because foreign-to-foreign communications never passed through American switches at the time.

Ed, the reason why FISA is necessary is that there still needs to be oversight to ensure the communication is indeed foreign-to-foreign. If you don't allow for an outside review of the NSA's wiretaps, the potential for abuse is enormous. It isn't the fault of FISA that the telecommunications net now largely passes through the U.S., and there's no reason why the DoJ could not have had its act together to respond more quickly to the case you cited earlier.

Posted by coldwarrior415 | October 15, 2007 1:23 PM

Even under the "old" FISA, superceded by the "tentative new FISA," it was and is no mere matter of filling in the blanks on a form and running it by soemone, anyone, at DoJ.

And average FISA exemption request under the old rules amounted to normally about 100-200 pages of supporting documentation, sometimes a lot more, and a series of endorsements up the chain of command and then over to the other Agencies, averaging normally about 15-20 signatures. At any point along the way, any one in the chain of command could stop the process, refuse to endorse the request, or add stipulations that would have to be re-endorsed by all previous endorsing officials before it continued its way to the final authorizing signatures. Average time under "old" FISA, about a week. If it were hypercritical, something the "old" FISA was not constructed to deal with, the time shaved off could be a few days at most.

Under the tentative new FISA rules, having all "i's" dotted and "t's" crossed and having a letter perfect paper product produced, with attendant supporting documentation, in an atmosphere where a lot of endorsing officials have to go out on a limb constantly, there is reluctance to chop off on any FISA exemption for fear of being left holding the bag when Congress yet again tries to change FISA or make components of FISA retroactive, as they are now attempting to do once again.

In this atmosphere, the very idea that a FISA exemption can be had in a matter of minutes or hours is ludicrous.

Posted by hunter | October 15, 2007 1:43 PM

I see the terror-enablers are out in force. I guess there is a break in the effort to get Turky out of the GWOT alliance.
Thank God that FDR ignroed the laws when it got in the way of winning WWII.
The military could use about 10% of the lawyers now in the ranks and we would still have too many.
From Mullah Omar to the fiascos on how to treat peopel not covered by the Geneva Conventions, lawyers consistently come out with actions that put Americans at risk, make victory less likely, and terrorists more secure.

Posted by ghost | October 15, 2007 1:48 PM

Even with new FISA vs old FISA issues, does there not still exist a clause/grace period under which actions can be taken, and legal justification sought in the subsequent 72 hours?

It's ridiculous that the delay in deploying resources available to the effort to rescue the soldier took place. It's almost as bad that this, "oh no, we couldn't do everything in our powr, just because we had to make sure our legal butts were covered" story has been constructed so as to score political points.

I missed the bottom line, though, was Jimenez rescued at the end or not?

Posted by starfleet_dude | October 15, 2007 2:09 PM

When it comes to our constitutional rights, it's not better for our spooks to beg forgiveness instead of asking for permission as such abuses may never even come to light to beg forgiveness for. If the DoJ under a Republican administration can't be bothered to task oversight efficiently, then the solution isn't to do away with the oversight but instead find someone who is willing and able to do the job right.

Posted by Colin | October 15, 2007 2:11 PM

This was the circumstance/grace period under which action could be taken, with approval sought within the next 72 hours. That approval referred to the FISC, the court in question. The action could be taken without court approval only with the consent of the Attorney General, and the AG needed to be presented with a justification under the law, not just under common sense.

This kind of nonsense does not make sense in the midst of a shooting war. Like this Jimenez's mom said, fix the law!

Posted by coldwarrior415 | October 15, 2007 3:11 PM

Approval for a classic spy operation, Mr. Volodkov, Second Secretary to the USSR UN Mission talking on the phone to a Mr. Hansen or Ames, or Mr. Smith living next door to you, would neatly fall under the strictures originally set by FISA. That is why it was established.

Americans were talking from their home phones, office phones, and the phone down on the street corner to foreign agents and Resident operations officers -- spys -- when FISA was set up, mostly in convulsive response to Watergate. The 72 hour grace period meant that the take could be obtained, secured, transcripts prepared, and validated and other admin functions accomplished, with no real threat the Soviet or the American-turned-spy would bolt immediately, and the week-long paperwork follow-up would be no more than a bureaucratic speed-bump.

Jump forward to today. For example, over 5000 known US throw-away cell phones have been purchased by suspected persons or persons of interest across the country since 9-11 and only a few have been activated, mostly abroad. The remainder have yet to be activated. Add to that the one-time usage of these cell phones, all covered as "US persons" under the law, and the high volume necessity of routing foreign to foreign phone calls and internet transmissions through US-based routers or switches, and what FISA envisioned in the 1970's was suddenly light years behind was is happening in reality in 2007.

Sometimes you get a one-time shot at a set of communications, and then the line goes dead as the phone is tossed out or the internet site or email addee changes, often within a few hours of it being flagged and noted. After 72 hours, nothing. No follow-up. The line was active. The line went dead. In these cases, for the most part, there is no FISA exemption requested simply because there is no activity and no further activity expected. This happens more often than not. BUt, if there is a US person on the line, or probable US person on the email addee list, not having submitted a FISA exemption or regular FISA request is gonig to cost someone on the uptake side dearly.

Similar to web site usage and email transmission. Short burst transmissions and then zip. Traditional FISA strictures are moot when that heppens.

The alternative would be to open up the entire ethernet/internet and all phone usage and let NSA comb through thousands of hours of take, and then, finding something of interest, establish that it is foreign to foreign, or foreign to suspect US person, and then try to get something accomplished through FISA. The volume would be astronomical, to say the least, and thousands of real living breathing US persons who had nothnig to do with any sort of hostile entity would be electronically swept up, and FISA would probably turn down a lot more requests, simply because fishing expeditions do not make the cut when you seek FISA approval.

But, NSA is not combing every phone call or email sent within the US nor abroad. They are developing matrices, using traffic analysis, taking advantage of captured documents and laptops and hard drives, and are looking for targets with a good probability of being confirmed hostile. It is those times when there is a target of opportunity that the bureaucratic inertial of having to deal with letter-perfect requests and endorsements and the rest comes into play, and lawyers from not only NSA, but lawyers from every agency who touches that FISA request are reluctant to soil their hands on sometehing that is not 100% positively proven beyond all shadow of any doubt to be 100% foreign to foreign and hostile...before hand.

Posted by davod | October 15, 2007 4:07 PM

This BS plain and simple. There are f....g people maiking up the rules as they go. Yes I am talking about lawyers. I just do not believe a plain reading of the law would stop the interception of the calls.

Posted by davod | October 15, 2007 4:23 PM

Some background on the original proponents of FISA Red Star Over FISA

I am not sure of the veracity of this information, but if there is any truth to the comments, it may explain why the Fellow Travellers in Congress are so upset that Bush found a way around the FISA Court. Rights of Americans be dammed they just wanted to slow down, or stop, the interception of potential ratbags communications.

Posted by lexhamfox | October 15, 2007 4:39 PM


I would think that review and oversight of clandestine searches by the government is a good thing and an American tradition rather than some sort of Soviet plot.

Posted by hunter | October 15, 2007 5:03 PM

The 3,000 dead of 911 would dispute your assertion about when to ask forgiveness.
The Gorelick-fabricated extralegal wal between intel and FBI was the proximate cause of the 911 plot's success.
Your mental gymnastics do nothing to hide that.

Posted by starfleet_dude | October 15, 2007 6:38 PM

hunter, I believe the FBI already had one man in custody who was partly involved with those who perpetrated the attacks on 9/11, and that President Bush was given a clear warning on the high importance of the matter a month before it happened. Seems to me that an administration that was more concerned about dealing with interagency cooperation instead of, as Bush put it, covering their ass and then dropping the ball about it, isn't an administration that's as interested in results as it is in making excuses. That, and finding ways to increase the power of the executive branch of government via NSA wiretaps that aren't overseen by an outside party.

Posted by docjim505 | October 15, 2007 7:09 PM

Be careful what you wish for...

TokyoTom: You seem to like a police state, though. Is that a conservative position? Can you find a single founding father who wouldn`t be screaming about what we see today?

Sec. 2. And be it farther enacted, That if any person shall write, print, utter or publish, or shall cause or procure to be written, printed, uttered or published, or shall knowingly and willingly assist or aid in writing, printing, uttering or publishing any false, scandalous and malicious writing or writings against the government of the United States, or either house of the Congress of the United States, or the President of the United States, with intent to defame the said government, or either house of the said Congress, or the said President, or to bring them, or either of them, into contempt or disrepute; or to excite against them, or either or any of them, the hatred of the good people of the United States, or to stir up sedition within the United States, or to excite any unlawful combinations therein, for opposing or resisting any law of the United States, or any act of the President of the United States, done in pursuance of any such law, or of the powers in him vested by the constitution of the United States, or to resist, oppose, or defeat any such law or act, or to aid, encourage or abet any hostile designs of any foreign nation against United States, their people or government, then such person, being thereof convicted before any court of the United States having jurisdiction thereof, shall be punished by a fine not exceeding two thousand dollars, and by imprisonment not exceeding two years.

The Sedition Act, 1798
Signed by President John Adams

Does that count?

They aren't Founding Fathers, of course, but Presidents Lincoln, Wilson, and Franklin Roosevelt played pretty fast and loose with the Constitution when they were fighting their wars. You might also like to read up on the Palmer Raids sometime. I don't say that a greater familiarity with the history of sedition laws in America will make you love George Bush, but they might make you a little less eager to brand him as the greatest enemy of civil liberties in the history of our country.

Posted by jpe | October 15, 2007 7:32 PM

They couldn't find anyone to sign the necessary form, b/c scandal had driven those who were authorized to do so out of office.

Yep. This has nothing to do with shortcomings in FISA and everything to do with the Bush administration business as usual: sheer incompetence.

Posted by jerry | October 15, 2007 8:17 PM

SF Dude:

You seem to be confused here. According to the 9-11 commision Bush was briefed that AQ was interested in staging attacks in the United States but was given no specific actionable threat information of an impending attack.

I think you are also referring to the so-called 20th hijacker, Zacaraius Moussaoui, who was in custody on immigration violation charges. They could not get a FISA warrant to examine his laptop becuase the they lacked probable cause. It was only after September 11th that a warrant was issued. He doesn't represent a good example for how FISA works.

It is a small miracle that the ACLU et al did not have the influence that they have today before World War II and the beginning of the Cold War. Neither the Magic nor the Venona intercept required warrants at that time. The Japanese and the Soviet commuminications passed through US Telecom systems (Western Union or At&T). If FISA existed at that time it might have prevented the use of Magic intercepts and it certainly would have prevented the use of Venona to identify and arrest several Soviet agents most notably the Rosenbergs.

Posted by davod | October 15, 2007 8:36 PM


Did you read the article?

If the article is correct, I worry a little when a KGB agent is working in a non-profit pushing FISA.

Posted by jpe | October 15, 2007 8:36 PM

They could not get a FISA warrant to examine his laptop becuase the they lacked probable cause.

Totally wrong. The problem was that the FBI agents had no idea what FISA required.

Posted by jerry | October 15, 2007 9:37 PM

Sorry JPE, but I talked to the FBI counsel about the circumstances when I was detailed as a DoD liaison to the FBI in 2002. This is the famous Coleen Rowley incident where she claimed that she tried to get a FISA warrant but was turned down by the bureaucrats at FBI headquarters. The truth was that the warrant request was thin and the last time he had presented a poorly written request to the FISA Court the judge told him that he would ban him from the court if he presented another request like that. He wasn’t going to risk his career for a poorly written brief filed by a field office counsel who had never written a FISA request before.

Posted by Tim | October 16, 2007 1:22 AM

When are you people going to remember one thing this is a war why do lawyers even have to be talked to next thing you know you will have to have a lawyer sitting at the right hand of our generals saying ya or na about shooting a guy that is shooting at us
this is pure BS

Posted by MarkD | October 16, 2007 7:05 AM


Nice word, but the soldiers are still dead. The law is still not fixed. In a similar situation, today, what would happen?

You don't fight a war with one hand tied behind your back by your own side. We did that in Vietnam.

Posted by jerry | October 16, 2007 7:25 AM

I have a fundamental question that nobody has bothered to ask:

How does NSA or FBI eavesdropping on two foreign unlawful combatants outside the United States reduce the civil liberties of American citizens irrespective of what path the conversation takes?

Domestic cell phone conversations do not magically get broadcast at random locations around world.

Posted by Jim | October 16, 2007 8:52 AM

Ed--it looks like bungling by the Justice Department (in not having changed its internal regulations), and not FISA, caused the problem. This is from the Fox News site:

As the following schedule for May 15 shows, the investigators were delayed from tracking the suspects:

— At 10 a.m., U.S. officials came upon the lead that suggested they may have located the suspected kidnappers and needed to access "certain communications."

— At 10:52 a.m., the National Security Agency notified the Justice Department that under the existing FISA law at the time, a warrant was needed to eavesdrop because the communications passed through the U.S. infrastructure.

But here's where the argument differs. According to FISA bill opponents, at 12:53 p.m., lawyers and intelligence officials began working to confirm probable cause to identify the kidnappers as foreign insurgents and therefore a legitimate target. However, the Democratic staff reports that the NSA general counsel at that time said the FISA requirements had been met for collecting "communications inside the U.S."

Bill opponents say that at 5:15 p.m., the lawyers established probable cause and Justice Department officials began the process of requesting emergency authority to conduct surveillance of the suspected kidnappers. Democratic staffers questioned why it took more than five hours for Bush administration lawyers to wrangle over the legal underpinnings of their request.

In the effort to get approval for emergency surveillance, Justice Department officials had to track down then-Attorney General Alberto Gonzales, who was in Texas, and relay the facts that had been established. The memo from Democratic staff notes that this became necessary because the three officials with the Justice Department authority to grant permission to conduct emergency surveillance were unavailable.

A fourth — the assistant attorney general in charge of the national security division — had been granted authority by Congress to authorize surveillance, they say, but because the Justice Department hadn't changed its internal regulations, the assistant attorney general was prevented from granting the approval.

— At 7:18 p.m., Gonzales approved the emergency surveillance based on their certainty that the court would grant the warrant retroactively within the week

— At 7:38 p.m. — nine hours and 38 minutes after the officials got a lead in the search, the intercepts of the suspected kidnappers began.

"Because of the Bush administration's bungling, minutes turned into hours. And during those hours, the intelligence community waited for information on the three missing soldiers ... Now, the Republicans want to lay this at the feet of Congress?" reads the memo.

Posted by TokyoTom | October 16, 2007 9:47 AM


Thanks for bringing up the flagrantly and chillingly unconstitutional Sedition Act.

Indeed, greater familiarity with the history of sedition laws in America should not only not make anyone love George Bush more, but also give any true patriot pause at the well-known phenomenon of how quickly we seem to be willing to throw away essential liberty whenever there are politicians who see personal gain in alleged external threats.

I don't see Bush as the greatest enemy of civil liberties in the history of our country, but his Administration is certainly the greatest present threat to our liberty and our good name - in the face of cowards in both parties in Congress. As for our pocketbooks, will this cost+ war ever be funded?



Posted by TokyoTom | October 16, 2007 10:05 AM

Ed, what you pulled here is no strawman. Stop beating your wife, and our liberties.

You are of course right that "no one seriously suggested that courts needed to issue warrants to listen to foreign enemies of the US talking to each other" and that "It should take zero lawyers to chase down captors of American soldiers abroad in a theater of war", but rather than explore WHY any lawyers at all are required, who is responsible for the physical routing of our telecom circuits and whether this problem could have been contemplated and avoided, your first instinct is tlak about laws being "immediately stricken from the record by Congress".

There was obviously a screw up here - both in executing procedures and in routing foreign communications through an American switch to begin with despite rules that would impose bureaucratic hurdles, but instead of focussing on that - but instead of troubling yourself with that, you go straight for further gutting FISA.

I didn't assume you want a police state, but I have to say that your instincts really trouble me.


Posted by coldwarrior415 | October 16, 2007 10:43 AM


"...The truth was that the warrant request was thin and the last time he had presented a poorly written request to the FISA Court the judge told him that he would ban him from the court if he presented another request like that. He wasn’t going to risk his career for a poorly written brief..."

This touches on one of the bureaucratic problems encountered when filing a FISA request even in the best of circumstances.

This is something those who believe that getting a FISA request approved is a cake walk...just wake up a judge or run down a DoJ official somewhere...

One of the last FISA requests in which I was involved had to do with a few foreign nationals, resident aliens here in the US, under law "U.S. persons." A FISA request was deemed necessary.

We were in pursuit of the activities of these U.S. persons in a foreign country across our border.

We had been tipped off from a foreign government liaison service, and through other means, that this small group were routinely exiting the U.S. and had a habit of making direct telephone calls to bigoted phone numbers [those phone numbers that tied directly to desk phones of the highest leadership of a hostile foreign intelligence organization and government] in a hard-target foreign capital half a world away.

The foreign liaison service we were working with asked for information about these people and we were limited in what we could tell them since, at the time, and I understand it to be pretty much the current rule, an agency of the federal government cannot pass along degrogatory information about U.S. persons to a foreign government wihtout Attorney General approval.

Then the paper exercise/battle began...and the foreign government became reluctant to try to obtain product if we did not give them chapter and verse about who the targetted persons were and what our interest in them actually was. They had sensitive equities they were willing to use, but only in extremus, not for ash and trash.

First we had to get AG approval to pass along derogatory information about these U.S. persons...that they were agents of a hostile intelligence service, among other things.

Two weeks of writing, re-writing, passing it through our lawyers, then we started the endorsement process, having the document kicked back a few times, more pages re-written and more information added, much of it further eroding that boundary of sources and methods, and having the document given wide distribution within the Community as approvals and endorsements were obtaineed. More weeks passed for approval to pass simple information to a friendly liaison service.

That task accomplished, because we were dealing with U.S. persons, abroad, but U.S. persons who were also calling home here in the U.S. often, it was deemed necessary for a FISA request to be obtained because we were de facto/de jure tasking a foreign government to do our bidding, thus they were acting as an "agent" of the U.S. government.

These U.S. persons were talking not only to their leadership but also to persons here in the States, some not involved in hostile activities, perfectly innocent as far as we knew, here in the US. Thus the further need for a FISA request.

The paperwork began once again, re-writes, sterilizing intelligence product, adding a host of legally required substantiation, addressing the necessity of a FISA request with extreme precision, getting the facts clearly spelled out on paper, getting intra-agency endorsements, then passing it to the Community on its way to the Attorney Gedneral. Remember, at the time, mere phone numbers were not sufficient for FISA, we had to enumerate persons involved, in detail.

Several weeks later we had our FISA approval.

We lost a host of good information about these persons along the way, the specifics of their conversations with their foreign intelligence leadership, lost vital information as to who these leaders were, lost the opportunity to gather technical details on a lot more than our U.S. persons having conversations with their leadership, and a lot more.

Eventually, we obtained, in an incidental way, a lot of product on these persons obtained by another foreign government prior during and after the FISA warrant being approved, but that was weeks and months later, still.

Finally able to legally go after these persons, we were able to establish that they were indeed involved in foreign espionage, and were persons of great interest to the Community. After all this work, we are told that it was all well and good, but since they were U.S. persons and maintained a residence in the U.S., we had to turn the entire matter over to the Bureau.

Months passed. We did not want them arrested, we wanted to use them as a ferret to obtain further infomation about who precisely they were working with, what precisely was their tasking, and who else abroad and within the US were part of their organization. Regardless, it became a law enforcement matter, no longer a foreign intelligence matter.

Several more months passed from our initial indicators of hostile activity to the Bureau assuming full cognizance over the target. For whatever reasons, one or two of the members of this group discovered that they were under surveillance, and all known members of the organization promptly left the US, never to return to the States, nor appearing elsewhere in a similar role.

Had we been able to merely pick up a form, fill in the blanks, like applying for a drivers license, we could have obtained a significant take on the subject and persons involved, and hada field day working the target.

But no judge would have signed off on it. A simple form or a few pages of boilerplate wasn't sufficient.

Several months, half a year, from tip-off to the Bureau assuming cognizance, and the rapid departure of our targets.

A FISA request, even today, perhaps moreso today, is a legal document, subject to all the strictures of any federal-level legal document, has to be not only letter perfect, but also legally sound, with ample supporting evidence and documentation. It has to be able to withstand presentation and examination in a court of law, let alone the court of public opinion.

There can be no assumptions nor conjectures.

And sometimes those facts are lengthy, sometimes those facts expose sensitive sources and methods, and erode our capabilites as they become known to yet a wider audience. Sometimes those facts are called into question by any number of endorsing officials along the way, for whatever reasons, the process stops, and takes several steps backwards before it can go forward again.

That was the world of intelligence collection meeting law enforcement and Civil Rights under ideal circumstances, the Gorelick Wall notwithstanding.

But, as many have pointed out, we are at war, we are not going after a couple of thugs who are robbing Kwickie-Marts over a four state area.

We are walking a tightrope to thwart foreign persons intent on doing harm here and abroad while at the same time avoiding the pitfalls of enabling a potential police state at some point along the way.

Precedent in law is a powerful thing. Once a line is crossed it is damn difficult to uncross that line. If not the present Administration, another Administration may use this precedent to expand powers far beyond those presently held.

Was the judge who denied the Rowley request right? If the documentation was flimsy, he probably was right. And for the right reasons.

There is a world of difference between prosecuting a criminal and prosecuting a war.

We are at war, despite the fact that 90% of the Nation is not the least bit involved.

Why is it so difficult for so many to still not grasp this concept?

Posted by coldwarrior415 | October 16, 2007 10:52 AM

Tokyo Tom, there is no one person responsible for routing calls through the U.S.. It is a matter of technology and a global communications network, for phones and for internet usage. Signals pass along the path of least resistance. In the days of analog phones and simple switches, a phone call from Toledo, Ohio to Detroit, Michigan, a distance of 60 miles, could easily be routed through Kansas City or Atlanta.

In a global net, a call or an email from Berlin to Vienna may pass through switches and routers in London, or New York or Los Angeles. If a trunk circuit is at capacity, or routers reaching peak, signals are routed elsewhere routinely, so a call from Kabul to Frankfurt can easily be detected running through a router/switch in Detroit.

Direct satellite phones, the kind UBL used before the press exposed our efforts at tracking the same, have a more limited channeling. But, for the rest of global communications, any phone, and any email, from anywhere in the world, is routinely found crossing our borders each and every hour of each and every day.

Posted by docjim505 | October 16, 2007 12:28 PM

TokyoTom: ... give any true patriot pause at the well-known phenomenon of how quickly we seem to be willing to throw away essential liberty whenever there are politicians who see personal gain in alleged external threats.

I didn't see a "/sarcasm" tag in your post, so I have to assume that you wrote this statement in all seriousness.

Let's try rewording it to coincide a bit better with life on planet earth:

"... give anybody concerned with protecting our civil liberties pause at the well-known phenomenon of how quickly we seem to be willing to throw away essential liberty whenever there is a perceived threat to the security of the United States."

That's better. I mean, unless you genuinely think that al Qaeda and other, similar terrorist groups aren't a threat to the United States or don't even exist at all. You're not a Troofer, are you?

Let's review a little history:

Sedition Act of 1797 - The proximate cause was the "Quasi-War" we were fighting with our erstwhile ally, France. Americans became aware that the French and their partisans in the United States were not only trying to affect American policy, but genuinely feared a French-inspired revolution. I recall reading that hundreds of citizens turned out to guard the executive mansion out of fears that Jacobin revolutionaries were plotting to murder President Adams.

The Sedition Act, along with the various Alien Acts, were an overreaction to what was perceived as a very real threat to the safety of the United States.

President Lincoln's suspension of habeus corpus and other assaults on civil liberties - The proximate cause was the American Civil War. Half the country was in armed revolt against the United States. Indeed, there were genuine fears that seccessionists would attempt to murder President-elect Lincoln as he traveled to Washington to take his oath of office. We know that there was a small but virulent group (mostly democrats, by the way) that actively sought to collaborate with the Confederate government.

President Lincoln's actions were a reaction - perhaps an overreaction - to a very real threat to the safety of the United States.

Palmer Raids, ca. 1919 - The proximate cause of this outrage (no other word for it) on civil liberties and the rule of law in the United States was the activities of anarchists and the suspected influence of Bolsheviks in the wake of the Russian Revolution. Such incidents as the Chicago Haymarket Riot and the assassination of President McKinley, the rise of the of the IWW and other labor unions, the large wave of immigration from southern and eastern Europe during the last half of the 19th century, and hysterical fears of German saboteurs during World War I all combined to make many Americans quite nervous about the nefarious activities of anarchists, socialists, communists, Bolsheviks, and foreigners in general. Attorney General Palmer had personal reason for fear: Italian-born anarchist Carlo Valdonoci exploded a bomb (and himself!) outside Palmer's home in Washington on June 2, 1919. Several other bombs were exploded that day in eight American cities (future President Roosevelt happened to be walking near Palmer's house with Eleanor when Valdonoci exploded his bomb; neither of the Roosevelts were injured).

In response, the government rounded up over 10000 people in the following months, deporting many to Russia. This first "Red Scare" makes what happened in the '40s and '50s look like a minor tiff in a grammar school.

Nevertheless, the Palmer Raids were a reaction - an overreaction, actually - to a very real threat to the safety of the United States.

The government's heavy-handed response to the Bonus March, the roundup of American citizens of German, Italian and Japanese descent during World War II, the "McCarthy Era", the wiretappings by Presidents Kennedy and Johnson and FBI Director Hoover... American history is replete with instances of overreaction on the part of the American PEOPLE to threats: perceived, inflated, or real.

I don't excuse any abuse of power by the government on the grounds that "it's been done before", but I do say that the reaction to 9-11 has been quite mild, that the threat posed by the islamofascists is real and we need to do something about it, AND that what HAS been done has not been to sole work of George Bush. I seem to recall a large number of Congressmen, practically bursting with self-congratulation, singing "America the Beautiful" on the steps of the Capitol after passing the Patriot Act.

Save some of your bitching for them.

Posted by coldwarrior415 | October 16, 2007 12:44 PM

Excellent points, docjim505.

The one overwhelming lesson learned from all of your citations, and ignored purposely by those who try to raise the strawman of the Bush police state, is that in all the instances you cited, and a number of others, such as censorship of personal mail on a large scale, the many many thousands of V-mail censors, to cite another example, were instituted when there was evidence of a real threat to the entire nation.

Once the situation, be it the Civil War, or the end of WWII, for the most part, ALL of those liberties that were somehow taken away, were re-instituted with even more safeguards attached. The notable exception being the wiretapping of American citizens during the Kennedy and Jouhnson years.

But these civil liberties were re-instated almost immediately upon the removal of the threat.

Seems too many want us to not curtail anything, but still successfully promulgate a very real war that extands far beyond the borders of either Afghanistand or Iraq.

Then, of even more importance, are those, no matter how many times they say they support the troops but don't support the war, don't want us to "win" by any definition. The mere fact that this is somehow Bush's war is all the ammunition they need to derail any effort toward success...the current difficulties with Turkey being but the most recent example.

Under the guise of allegedly protecting everyone's civil liberties, they ignore the most important civil liberty of all...the Right to Life...without which all the rest of the Bill of Rights is essentially meaningless.

Posted by TokyoTom | October 17, 2007 12:50 PM


Thanks for your response. I agree that our history is replete with examples of overreaction, but excuse me for finding none of that reassuring.

I was concerned about terrorism long before 9/11; it was obvious that we were setting ourselves up to be targets long ago. But there is simply NO conventional threat against the US, so no reason to be giving the federal government any more control over our lives.

And yes, I think I`ve made it clear I am fully aware of the complicty of our spineless Congresscritters in all of this. It should concern you too, seeing how unlikely anyone on the Hill will be interested in standing up to Pres. Hillary.

Coldwarrier, you don`t really seem to care about liberty at all, or the fact the our government cares very little about it either. I am glad that there are guys like docjim here to inform you from time to time, but it largely seems that the effort is wasted on you.


Posted by coldwarrior415 | October 17, 2007 1:18 PM

Tom, I deeply care about our Liberty. Spent most of my adult life defending the same.

But, I do recognize that there are times when certain liberties have to be curtailed for the larger good of keeping the Nation alive, and protecting overall real Liberty.

Just as one small example -- would a V-mail system be allowed under the current political setting? Not a chance. Censoring private mail in and out of a war zone? The ACLU would be all over it. Americans today would condemn the same. But it saved lives. No matter, today the ACLU would make it a cause celebre.

In every instance over our 200+ year history where we have faced a serious threat internally and abroad certain civil liberties have been set aside, and upon cessation of hostilities and an end to the serious threat, those same civil liberties have been reinstatred, reinforced, and made stonger both on paper and in the minds of those who faced the threat successfully.

Lastly, I pose this question, as I have to many many others, never once getting a proper reply. Who, which innocent US citizen, has had his/her civil liberties crushed by any action related to FISA over its entire history?

There have been thousands of allegations, widespread rumors that NSA is monitoring ALL Americans, that NSA has wired tapped and is wiretapping thousands and thousands of US telephones -- all speculative rumors or outright lies.

Using FISA as an excuse for inaction, in the case posed by Ed on this thread is one thing that needn't happen. Suggesting that FISA is a broad sweeping away of our liberties is something of myth, fantasy or political projection.

I firmly believe in Liberty. Liberty is not free. There are costs involved. The one cost I will never accept is to allow the deaths of Americans here at home or abroad because someone has decided for them that their own personal liberty is worth more than those dead Americans' Right to Life, Liberty, and the Pursuit of Happiness.

Posted by TokyoTom | October 18, 2007 12:27 AM


- "there are times when certain liberties have to
be curtailed for the larger good of keeping the Nation alive, and protecting overall real Liberty"

Nonsense. The government, and those who run it and profit from it, care primarily about keeping themselves well-fed at our expense and our granchildrens' - and not an iota for our liberty. Our tribal reactions to external and internal "threats" is just the line of BS that we are constantly fed so that we can be better controlled and ripped off.
In any case, why is THIS one of those times? Terrorism is dangerous, but poses no existential threat.
- "civil liberties have been reinstatred, reinforced, and made stonger both on paper and in the minds of those who faced the threat successfully."

So it's fine if we over-react and lose liberty for no really good reason, as long as some people find their spines AFTER the threat d'jour has been vanquished? While intrusions on liberty have been partially beaten back, the actual lesson of history is one of continued growth, greater intrusions and less control over them, made possible by your friendly federal government and its various wars that NEVER END, like the war on drugs and the perpetual war for perpetual peace now underway.

We are much worse off than we used to be, with high technology snooping, database mining, most "intelligence" completely out oversight, "emergency" powers that are abused but yet extended, telecom companies that voluntarily break the law and then get immunity, and an administration that still asserts that it can lock up any American at any time, without benefit of counsel and without charges. The Dems abused this before Bush, and it will be their turn again soon. When will conservatives stand against the REAL enemy, which is Leviathan?

- "Who, which innocent US citizen, has had his/her civil liberties crushed by any action related to FISA over its entire history?"

Ever read about the cases that the government is simply squelching by means of the "state secrets" doctrine?

- "Suggesting that FISA is a broad sweeping away of our liberties is something of myth, fantasy or political projection."

FISA (which is intended to be a check) allows too much, and to a President who has already said he doesn't think he is bound by it, but that wasn't my point, was it? Rather, I am concerned that Ed's FIRST IMPULSE is to FURTHER remove checks on government - for a war that isn't expected to be won in our lifetimes. My God man, can't you see the folly and danger in this path?

I leave you with a few thoughts on government:

“The problem with American conservatism is that it hates the left more than the state, loves the past more than liberty, feels a greater attachment to nationalism than to the idea of self-determination, believes brute force is the answer to all social problems, and thinks it is better to impose truth rather than risk losing one’s soul to heresy. It has never understood the idea of freedom as a self-ordering principle of society. It has never seen the state as the enemy of what conservatives purport to favor. It has always looked to presidential power as the saving grace of what is right and true about America.

“I'm speaking now of the variety of conservatism created by William Buckley, not the Old Right of Albert Jay Nock, John T. Flynn, Garett Garrett, H.L. Mencken, and company, though these people would have all rejected the name conservative as ridiculous. After Lincoln, Wilson, and FDR, what's to conserve of the government? The revolutionaries who tossed off a milder British rule would never have put up with it.

“For my part, I'm hoping that the whole conservative movement will go down in flames with the decline and fall of the Bush administration. The red-state fascists have had their day and instead of liberty, they gave us the most raw and stupid form of imperial big government one can imagine. They have given America a bad name around the world. They have bamboozled millions. They have looted and bankrupted the country.”

Llewellyn H. Rockwell, Jr.“The Great Conservative Hoax.” May 4, 2006; http://www.lewrockwell.com/rockwell/conservative-hoax.html

“The same state that robs you and me, ties business in knots, and wrecks the schools also does the same – and worse – to countries that the US government invades. From the point of view of the taxed, the destination of the money doesn't matter; it is all taken by coercion and all of it saps the productive capacity of society. Similarly, the state that uses military power to impose its imperial will on foreign regimes – destroying property and lives, and making endless enemies – is the one the left proposes to put in charge of our economic lives.”
Rockwell, Llewellyn H. Rockwell, Jr.“Are Conservatives Crazy.” March 30, 2006; http://www.lewrockwell.com/rockwell/two-brains.html

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