What were administration lawyers debating for four hours after the NSA said it had sufficient basis for an emergency FISA warrant in the Iraqi insurgent-kidnapping case?
The three soldiers were reported missing on May 12, 20007. According to the timeline that Adm. Mike McConnell provided to the House intelligence committee, on May 14, the day before the emergency-surveillance controversy, intelligence officials approached the FISA Court for an amendment to a "then-current order" that had "some bearing" on the kidnapping crisis. The court apparently granted the amendment "that day." That, at least, suggests that even if the FISA Court had expanded, generically, FISA's protections to foreigners' communications passing through the U.S., the court was willing to work with the intelligence community to ensure that necessary surveillance could take place.
But presumably the NSA still didn't have enough material to satisfy probable cause on the insurgent communications on May 14, hard as that is to believe. The next morning, May 15, administration officials met to discuss surveillance, and by 12:53 a.m., the NSA's chief lawyer established that there was sufficient evidence for an emergency FISA warrant "for the remaining collection inside the U.S." By that, the lawyer means that the NSA needs a warrant to capture whatever insurgent communications pass through U.S. communication switches, and by about 1 pm, believed there was sufficient probable cause to justify an emergency warrant. It's likely that whatever other information the NSA had collected, it had done so through monitoring Iraq-to-Iraq communications that didn't pass through the U.S. or had gotten a measure of coverage through the aforementioned FISA Court amendment.
Yet according to the timeline, for the next four hours, administration officials "discussed legal and operational issues" about the surveillance. That's the critical delay, in all likelihood. Once NSA considers that probable cause for an emergency warrant has been met, why didn't the NSA contact the Justice Department's FISA office, the Office of Intelligence and Policy Review, and get an emergency warrant through to the Attorney General for his signature? McConnell told Congress that even with the emergency warrant in place, it still takes time to acquire sufficient material to meet an after-the-fact probable cause determination. But in a real emergency -- and the kidnapping of U.S troops in Iraq would seem to count as one -- it's hard to imagine why that review couldn't have occurred parallel to the surveillance, especially when the NSA says the lion's share of the probable cause is there.
OIPR got the NSA material at 5:15. It took another two hours to locate the Attorney General, who was in Texas to give a speech to U.S. attorneys. By then, however, it appears the crucial delay had already occurred.