Fix FISA

Few cases highlight the acute need to reform the Foreign Intelligence Surveillance Act (FISA) like its role in delaying a May search for three American soldiers ambushed by terrorists in Iraq. At one point after the soldiers were kidnapped, it apparently took the U.S. government more than nine hours to begin emergency surveillance of the kidnappers’ electronic communications — the result of a ruling by a judge on the special court overseeing FISA that challenged the government’s ability to collect data from wires in this country — even if they were monitoring foreign terrorist targets. One of the soldiers was later found dead, and the other two are missing.

The facts of the case are this, according to a Defense Department timeline reported by the Associated Press: On May 12, the soldiers disappeared after being ambushed by insurgents south of Baghdad. As coalition forces mounted an all-out search for the missing soldiers on May 13 and May 14, intelligence officials learned of insurgent communications they believed were related to the ambush, and on May 14, the Foreign Intelligence Surveillance Court, which oversees FISA, issued an order permitting some of the suspected insurgent communications to be targeted.

On May 15, intelligence agents met at 10 a.m. to discuss collecting additional intelligence. By 10:52 a.m., the NSA had notified the Justice Department that it would need a FISA order to collect some of the additional intelligence. At 12: 53 p.m., the National Security Agency (NSA) general counsel agreed that all the requirements existed to obtain an emergency FISA authorization. Between 12:53 p.m. and and 5:15 p.m., intelligence officials and intelligence officials “discussed various legal and operational issues” related to the surveillance, according to the Pentagon. At 5:15 p.m., they made the formal request for emergency authority to the Justice Department’s Office of Intelligence Policy and Review (OIPR). Fifteen minutes later, the OIPR lawyer on duty attempted to reach Solicitor General Paul Clement, who in Attorney General Alberto Gonzales’s absence was acting attorney general, but he had already left for the day. More than two hours later, Mr. Gonzales authorized the surveillance. National Intelligence Director Mike McConnell argues sensibly that a nine-hour delay in conducting these intercepts is intolerable.

For their part, the ACLU and such Democrats as House Intelligence Committee Chairman Silvestre Reyes counter that no change in the law is needed and that any delay in authorizing surveillance is attributable to Bush administration incompetence and bureaucratic bungling. It would be hard to imagine a more misleading and intellectually dishonest argument. As Mr. Reyes and the ACLU surely know, until this year, if the NSA wanted to monitor a suspected terrorist telephone call between, for example, Fallujah and London, it was perfectly legal to place a wiretap in this country. Beginning in March of this year, all of that was called into question. First a judge on the FISA court issued a ruling that challenged the government’s ability to collect data from wires in this country — even if they were monitoring foreign terrorist targets. Then, in May, another judge told the administration that the wording of the law required that the government get a warrant every time it wanted to obtain information from a wire or fiberoptic cable on U.S. soil.

Mr. McConnell is doing precisely the right thing: We have no doubt that, if U.S. intelligence agencies were retroactively held to have broken the law as interpreted by the FISA court, Mr. Reyes and the ACLU would be issuing subpoenas and demanding that heads roll in the Bush administration. Sensible, permanent FISA changes must be made to prevent a recurrence of what happened in Iraq.