Washington – Last spring, with insurgents apparently holding three American soldiers in Iraq, it took the U.S. government more than nine hours to begin emergency surveillance of some of the kidnappers’ electronic communications.
The bulk of that time was spent on internal legal deliberations by Bush administration lawyers and intelligence officials, according to a timeline from the office of the director of national intelligence. One of the soldiers was later found dead. The other two are still listed as missing.
The delay was a centerpiece of the Bush administration’s argument to Congress in late July that the law requiring court orders to conduct electronic surveillance inside the United States was dangerously restrictive.
Congress subsequently approved an amendment to the Foreign Intelligence Surveillance Act that removed the requirement for a court order to intercept foreign communications on U.S. soil. The original law was written to protect Americans from inappropriate government surveillance.
The timeline, obtained Thursday by The Associated Press, showed that the Bush administration held “internal deliberations” on the “novel and complicated issues” presented by the emergency FISA request for more than four hours after the National Security Agency’s top lawyer had approved it.
The chairman of the House Intelligence Committee, Rep. Silvestre Reyes, D-Texas, last week blamed the delay on unnecessary bureaucracy within the Justice Department. Justice Department and U.S. intelligence officials dispute that, and say the NSA decision alone was not legally sufficient to authorize an emergency request.
“It’s not a done deal at that point,” Dean Boyd, a spokesman for Justice Department, said Thursday. “We believed we needed additional information and needed to resolve novel legal questions before we were satisfied we could take this to the attorney general.”
Another two hours passed when Justice Department officials had to make several phone calls to then-Attorney General Alberto Gonzales’ staff before they were able to speak directly with him to get his authorization for the surveillance, according to the timeline. He was at a conference in Texas.
The original FISA law generally requires court orders if the government conducts electronic surveillance on U.S. soil. It allows the attorney general to authorize surveillance in emergencies without a court order for up to 72 hours, provided the government has probable cause to believe it is eavesdropping on an agent of a foreign power.
The nine hours that elapsed between the start of the process and the beginning of surveillance has emerged as a point of strong disagreement between Democrats and Republicans in Congress, who are sharply split over whether to renew the temporary law they approved in August.
The Justice Department believes the problem is not how long it took to get the emergency approval but that approval was needed at all.
