Among the unanswered questions
from the nine-hour delay in May for eavesdropping on the communications of Iraqi insurgents: Why did it take four hours
for an emergency-FISA-warrant request to be sent to the Justice Department's FISA office after the National Security Agency's general counsel determined there was sufficient probable cause?
According to Dean Boyd, the spokesman for the DOJ's National Security Division, Justice Department lawyers who were reviewing the case on May 15 weren't initially satisfied with NSA's determination. Ultimately, it's the Justice Department that argues before the FISA Court for warrants, meaning that it's DOJ lawyers who would face criminal penalties if the court found, after the fact, that the government hadn't cleared the probable-cause threshold.
"This is not something we take lightly," Boyd told me. "We had to resolve very novel legal issues as quickly as possible while abiding by the statute." Boyd, citing classification restrictions, would not elaborate on what those "novel legal issues" were, but said that the four hours were taken up by DOJ lawyers' discussions with NSA and FBI officials before the case was taken to DOJ's FISA office at 5:15 p.m on the fifteenth.
That's left some officials familiar with the case perplexed. "The [probable cause] is the easiest part of the puzzle," says a government official. "It's not probable cause like it is in a criminal case, it's just finding that the target of the surveillance is an agent of a foreign power." In the case of Iraqi insurgents who had kidnapped U.S. troops, the source says, that should be a near-instantaneous finding.
"Had [the DoJ lawyers] chose to ignore the requirements of FISA, I suspect they would be the subject of substantial criticism from you and others," Boyd rejoined. "If anything, this anecdote demonstrates the absurdity of extending FISA's Fourth Amendment protections to Iraqi insurgents battling U.S. troops. It also demonstrates the lengths to which the Justice Department goes in order to comply with the legal requirements of FISA, which prior to the Protect America Act, applied to this particular surveillance."
Any suggestion that the process was weighted down by needless bureaucracy, Boyd says, is "woefully uneducated." He adds that focusing on the timeline is "irrelevant," since "if we had no such requirements for a legal process, we wouldn't have had [the delay.]"