GONZALES: To be sure, FISA allows the government to begin electronic surveillance without a court order for up to 72 hours in emergency situations or circumstances.
But before that emergency provision can be used, the attorney general must make a determination that all of the requirements of the FISA statute are met in advance.
This requirement can be cumbersome and burdensome.
Intelligence officials at NSA first have to assess that they have identified a legitimate target. After that, lawyers at NSA have to review the request to make sure it meets all the requirements of the statute. And then lawyers at the Justice Department must also review the request and reach the same judgment or insist on additional information before processing the emergency application.
Finally I, as attorney general, must review the request and make the determination that all of the requirements of FISA are met.
But even this is not the end of the story.
Each emergency authorization must be followed by a detailed formal application to the FISA courts within three days. The government must prepare legal documents laying out all of the relevant facts and law and obtain the approval of a Cabinet-level officer as well as a certification from a senior official with mass security responsibility, such as the director of the FBI.
Finally, a judge must review, consider and approve the application.
All of these steps take time. Al Qaida, however, does not wait.
Phew! Sounds like a lot of hard work! Gonzales paints the emergency FISA process to be so grueling, so bureaucratic as to render the entire process almost useless in this post-9/11 word where we need to act swiftly. Well, if emergency FISA searches are so darn hard to execute, why then has the Bush administration's use of emergency FISA risen exponentially since 9/11? Take for example the one year period following the 9/11 attacks. From 2001 to 2002 , the Bush administration had exercised the emergency FISA option 113 times. To total number of emergency FISA wiretaps in the court's 23-year history before Bush took office?
Forty-six.
Forty-six emergency FISA wiretaps in 23 years, and here we have 113 such warrantless wiretaps in a single year. By April 1, 2003, that number was 170. That's more than three times the total number of emergency wiretaps before Bush took office. In case you're wondering about the math, that's about 9 warrantless, emergency FISA wiretaps per month since September 11th. About 2 per week.
FISA works, and the administration's frequent, successful employment of FISA's emergency provision proves that. Again, the central issue: since the administration's own records prove FISA is flexible enough to address immediate terrorist threats, why did the President ignore the law and wiretap Americans without a warrant? Why did he keep his program secret for over four years? And what does he have to hide?
Comments are closed on this story.