The Fog of FISA

"You imply that the emergency authorization process under FISA is an adequate substitute for the legislative authorities that have lapsed. This assertion reflects a basic misunderstanding about FISA's emergency provisions. Specifically, you assert that the National Security Agency (NSA) or the Federal Bureau of Investigation (FBI) 'may begin surveillance immediately' in an emergency situation. FISA requires far more, and it would be illegal to proceed as you suggest. Before surveillance begins, the Attorney General must determine that there is probable cause that the target of the surveillance is a foreign power or an agent of a foreign power and that FISA's other requirements are met."

This letter from two senior officials in the Bush Administtration unwittingly acknowledges that it is illegal to intercept electronic communications outside of the guidelines legislated under FISA. Therefore, as critics of the Terrorist Surveillance Program already knew, the President acted illegally for at least five years by circumventing FISA via the Terrorist Surveillance Program, and probably the President is currently engaging in illegal activity because it is unlikely that all of the current electronic surveillance is within the guidelines legislated under FISA (notwithstanding those authorizations which legally can extend for up to one year after the expiration of the PAA of 2007).

Supporters of the Terrorist Surveillance Program have no shame about manufacturing horror stories to convince the public that deficiencies in FISA endanger our national security. One of these truth-challenged fabrications was mentioned by Rep. Lamar Smith (R-Texas) during the debate on the floor of the House of Representatives on March 14, 2008, as Mr. Smith urged his colleague's to vote against the most recent FISA amendments that were approved by the House of Representatives directly after this debate. The fable repeated by Rep. Smith consists of an allegation that deficiencies in the FISA were to blame for a 10-hour delay by U.S. intelligence personnel seeking to monitor enemy combatants in Iraq after three U.S. soldiers were kidnapped on May12, 2007 (and were later murdered). This stink bomb was dropped on the House Judiciary Committee by Director of National Intelligence Mike McConnell on September 20, 2007, and Senator John Cornyn (R-Texas) seduced Attorney General Michael Mukasey with this same story during Mr. Mukasey's appearance before the Senate Judiciary Committee on January 30, 2008. However, here is a timeline of the actual events that was released by The Director of National Intelligence on September 27, 2007:

*On May 12, 2007, after a coordinated attack on their position south of Baghdad, three U.S. soldiers were reported missing and believed to have been captured by Iraqi insurgents. Immediately upon learning of the attack, theater-based and national SIGINT assets responded by dedicating all available resources to obtaining intelligence concerning the attack.

*On May 13 and 14, 2007, the Intelligence Community began to develop additional leads concerning the communications of insurgents claiming responsibility for the attack, including approaching the FISA Court on May 14 for an amendment to a then-current order with some bearing on the hostage situation. The amendment was granted that day. As soon as specific leads had been identified, analysts began to compile all the necessary information to establish the factual basis for issuance of a FISA court order as required by the emergency authorization provision of the statute.

*On May 15, 2007:  At 10:00 a.m., key U.S. agencies met to discuss and develop various options for collecting additional intelligence relating to the kidnapping by accessing certain communications

At 10:52 a.m., the NSA notified the Department of Justice (DOJ) of its desire to collect some communications that require a FISA order. It was determined that some FISA coverage already existed.

At 12:53 p.m., the NSA General Counsel agreed that all of the requirements for an emergency FISA authorization had been met for the remaining collection of the communications inside the U.S.

From 12:53 p.m. to 5:15 p.m. Administration lawyers and intelligence officials discussed various legal and operational issues associated with the surveillance.