How our nation’s FISA law hindered the search for kidnapped soldiers in Iraq
15 October 2007Many believe that the restrictions we rightly place on the powers of our government won’t ever negatively impact our ability to fight the war we find ourselves engaged in. Here is a perfect example of what happens when we get too worried about violating the “rights” of our enemies, and forget that we have a blood thirsty enemy who wants to kill us.
‘WIRE’ LAW FAILED LOST GIs
Four of the soldiers were killed on the spot and three others were taken hostage.A search to rescue the men was quickly launched. But it soon ground to a halt as lawyers – obeying strict U.S. laws about surveillance – cobbled together the legal grounds for wiretapping the suspected kidnappers.
Starting at 10 a.m. on May 15, according to a timeline provided to Congress by the director of national intelligence, lawyers for the National Security Agency met and determined that special approval from the attorney general would be required first.
That’s right! The FISA law slowed down the search for our three kidnapped soldiers by almost 10 hours, while lawyers argued about probable cause justifications for tapping Iraqi cell phone calls that travelled through a US-based communications hub. I’m all for being diligent about protecting our rights here at home, but this is a good example of what happens when we go too far.
All three of these brave men ended up dead at the hands of our Al Qaeda enemies in Iraq. Who knows what might have happened if the lawyers had not hindered the intelligence gathering at the begining of the search for these men. They might just be alive today.
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7 Responses to “How our nation’s FISA law hindered the search for kidnapped soldiers in Iraq”
October 15th, 2007 at 2:22 pm
There is one fact missing from this post.
Is there one single shred of evidence that there kidnappers were a) discussing their crime on cell phones and b) that said cell-pones were routed the the US. Many, but not ALL cell phone conversations are routed through the US?
If not, then you could just as easily say that not being able to arrest and “aggressively interrogate” every single Muslim and Iraqi in the US.
“They that can give up essential liberty to obtain a little temporary safety deserve neither liberty nor safety.”
— Benjamin Franklin
He that would make his own liberty secure must guard even his enemy from oppression; for if he violates this duty he establishes a precedent that will reach to himself.
— Thomas Paine
October 15th, 2007 at 3:11 pm
Well, it says quite plainly:
A search to rescue the men was quickly launched. But it soon ground to a halt as lawyers – obeying strict U.S. laws about surveillance – cobbled together the legal grounds for wiretapping the suspected kidnappers.
Sounds to me like they had suspects, and they wanted to wiretap them. The FISA law, as written today, stopped them from being able to pursue that avenue or intelligence gathering for 10 crucial hours. That is a problem to me.
And I find your quotes quite tacky and inappropriate in this instance. We’re talking about the ability to wiretap Al Qaeda cell phones, Mr. Dukehart. I’m sure even old Ben Franklin would approve of that, if he had any concept of the enemy we face today and the importance of digital surveillance.
October 15th, 2007 at 3:56 pm
No, Del.
The FISA law allows the wire-tapping of non-Americans even if the conversation is routed through the US.
The post goes from speaking of searching for the kidnappers (presumably in Iraq) to saying that they needed to wire tap to do so. Alright, for the sake of this argument I won’t challenge this assertion. How hard could it have been to get approval from the AG? When was this exactly? Was Alberto sill the AG? Do you claim that he denied the needed approval?
As for quoting our founding fathers being ‘tacky’ and your insane assertion that “even old Ben Franklin would approve of that, if he had any concept of the enemy we face today.”
WHAT?!! How about the enemy HE faced? The worlds most powerful empire at the time. There were Red Coasts occupying what is today the USA! How can you even begin to think that we face a more dangerous enemy today? That is an insult to everyone who fought the British Empire and died to secure out liberty. You have no concept of the enemy HE faced.
October 15th, 2007 at 7:19 pm
Oh my gosh.. You continue to amaze me, J, that is for sure!!
The article states quite plainly that they wanted to tap cell phone conversations of suspects in the kidnapping. A judge’s order was required since some of the tapping would take place on part of the cell network that was US-based.
Don’t get me wrong. I wouldn’t be surprised to find that the hold up was not legally required. Who knows? Maybe it was a total screw up on the part of these “lawyers for the National Security Agency” that should have NEVER gotten in the way of tapping whoever is a suspect in the first place. I don’t know enough details from this article to make a judgment call on that, obviously. What I do know, however, is that the knee-jerk reaction to the debates on FISA, not to mention the illegal exposure of the NSA terrorist wiretapping program, have obviously got the NSA lawyers more worried about this law than about rescuing a group of kidnapped American military personnel. Hopefully we can both agree that this is a problem!
Your statement about Ben Franklin and the British Empire, however, is one of the silliest things I have read in a long time. No wonder you don’t take our enemy seriously. You think they’re no more dangerous than the red coats!
Let me just list a few ways in which your analogy falls flat on its’ face, in my opinion. I’m plenty knowledgeable about what our Founders faced, and that is why I know your analogy is so silly.
Please remind me of when 19 non-military British were able to pull of a sneak attack that killed almost 3000 Americans in less than three hours. The world that we live in is so different than the one the Founders faced that many of their basic assumptions just don’t hold true anymore. When battles were going on in the past, everyone knew the battle was about to start. The armies moved up to the line and waited on the commander to give the order to fire.
Don’t get me wrong. I’m not trying to belittle what the Father’s faced during the American Revolution by any means, but only to highlight the phenomena of the super-empowered individual, as described by NYT columnist Thomas Friedman in “The World Is Flat”, who’s been enabled by technology to have more impact today than a whole army could have in the 18th century..
Today, unlike any time in the past, one small group of super-empowered individuals can wreak catastrophic damage on the the US people and economy with almost no large investment in capital and military equipment. This just simply wasn’t the case when Ben Franklin wasn’t alive.
Next, we should look at the motivations of the British in comparison to the Jihad fanatics we face today. The British were rational actors, much like the Soviets. The Jihad fanatic, in comparison, is not a rational actor. He is motivated by a love of death in the name of Allah. His goal is nothing short of martyrdom. Thomas Jefferson actually wrote some interesting things about the Jihad fanatics of his day and I’m sure you’re familiar with his positions, since you know so much about the early enemies we faced. He had a clue about the sinister nature of the Islamic fanatic, but even he could never imagine the super-empowered Islamic fanatic.
Also, help me understand the revolutionary equivalent of Anthrax. Or Sarin Gas. Or nuclear weapons..
And what about the differences in modes of communication today? Back then, military secrets and plans were sent on paper or by personal courier. Today, between cell phones, sat phones, encrypted email, and the many myriad of communication means, the idea of wiretapping has some very different implications than it used to when there was a rider carrying a written note from Washington to Hamilton.
Basically, your snippy comment about Ben Franklin is based on a denial of the clear differences between what we face daily today, and what they faced then. This doesn’t mean I believe we should give up our liberties today and it doesn’t mean that their founding principles should be abandoned. It just means that any intelligent discussion of these issues should acknowledge the dangers we face today. And hopefully we can both agree that the NSA should not be put in a position to be more worried about what the lawyers think about a particular tap than they are about finding our missing soldiers!
Nighters!
October 16th, 2007 at 6:04 pm
I amaze a lot of people, though I suspect you didn’t mean it in an entirely positive way
First, I do agree that there is a very serious problem if the NSA does not have clear, finely delineated protocols regarding exactly what they can an cannot do. Also, it was never explained why it should take 10 hours to get a friendly judge or Alberto Gonzales to grant the authority that these unnamed lawyers thought was necessary.
Second, you make a big deal of the fact that the goal of the wire-tapping was to find the kidnappers of the three US soldiers. But in our society Freedom and Liberty are the paramount importance. Why don’t we do the grant the same paramount importance to recovering a kidnapped child? Why not ignore laws regarding unlawful search and seizer and conduct a house-to-house search and shut down all roads until the child is recovered. Surly, the ‘inconvenience’ of this to innocent citizens is less important than the life of a child.
I was wondering when you were going to play the September 11 card. Since you brought it up, lets review a few facts. 15 of the 19 hijackers where from Saudi Arabia and none of them were from Iraq. Saddam Hussein absolutely hated Al-Qaeda. He was a secular dictator. That was the cause of the war between Iraq and Iran, back when Saddam Hussein was our friend and ally (remember THAT?) Let us also remember WHY those insane jihadists staged their attack. They consider Saudi Arabia to be holy ground and want out bases out of their country. How many foreign countries have bases on US soil. How would you feel if they did? Further, in the past few days, it has been revealed that the telecom wiretapping program was started BEFORE 9/11, so there wiretapping that has Freedom-loving Americans like me so upset doesn’t really have anything to do with the ‘war on terror’.
Of course we live in a different world than that of 230 years ago. But I must reiterate that we were under occupation by the worlds most powerful Empire. They were forcing Americans to quarter red coats in their private homes. They were restricting American trade. They shot people in the street in Boston. The red coasts killed many more that 3000 Americans. They just didn’t do it all at once. Al-Qaeda hasn’t managed another attack on US soil since 2001. You are as aware of these facts as I am.
You go on to say that the Soviets were, while our enemies, rational actors. I agree. Does that mean you also agree that the trillions we spent on the Cold War arms race and SDI were all wasted? After all, no rational actor would use a nuclear weapon. Yes, an enemy who believes that if he ‘martyrs’ him self he’ll have 72 virgins waiting for him in heaven is absolutely insane and a dangerous person. But all we have to do to defuse them is close out bases on what they think of as their holy land.
Thomas Jefferson did indeed write about Muslims, especially the Barbary Pirates who were interfering with American trade in the Mediterranean. I am quite familiar with Jefferson’s positions however, I do not agree with all of them, and neither did Alexander Hamilton who, in an 1801 letter to James Bayard, called Jefferson “a contemptible hypocriteâ€
It is interesting that you bring up anthrax, because all of it was sent to democrats in congress and progressives in the media and the perpetrators have never been caught, nor has there been a concerted effort to do so. This, plus the fact that the letters were mailed from within the US makes my doubt that the poisoned letters came from the jihadists. Not am I aware of them using sarin gas. Saddam Hussein did use it. He got it from us.
If you’re worried about nuclear attack, I encourage you to support the careful search of every single bit of cargo entering US ports. The chance of the jihadists getting a hold of an ICBM is so infinitesimal as to be absurd. Shipping a nuclear bomb hidden in a cargo hold is far more likely.
Bringing up modern communications and comparing it the paper-only communications of the late eighteenth century only hurts your argument because Amendment IV guarantees “The right of the people to be secure in their persons, houses, papers and effects against unreasonable searches and seizers, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.â€
The telecom wiretapping is a clear violation of this vital principal of our society.
I take ALL religious fanatics seriously; weather Muslim, Catholic, and Evangelical Christian of what have you. They are all a danger to our secular society. You will probably disagree with me, but I believe this principal is more important than the lives of three soldiers who swore to protect and defend the Constitution, do the death if necessary.
I understand that you are afraid, Del. A lot of Americans have been afraid since the Supreme Court installed GWB as the Commander-in-Chief. Parents restrict their children’s freedom to keep them safe from our sometimes-dangerous society. But I am not a child. I am an adult, and as an American adult I chose Freedom and Personal Liberty over safety.
“They that can give up essential liberty to obtain a little temporary safety deserve neither liberty nor safety.†— Benjamin Franklin
There is no addendum to this saying “Unless you are really, really scared and your enemy is insane and committed to destroying you. If we give up our Freedom and Liberty then our enemies will have succeeded in destroying us.
October 16th, 2007 at 7:07 pm
Oh, Good Lord, man, your verbosity is exhausting to have to reply to, my friend, but I cannot let all of these strawmen stand flapping in the breeze. I guess I’ll just start at the beginging, although this is likely the last round that I have the stamina for…
I amaze a lot of people, though I suspect you didn’t mean it in an entirely positive way
I can tell your heart is in the right place! Hehe
First, I do agree that there is a very serious problem if the NSA does not have clear, finely delineated protocols regarding exactly what they can an cannot do. Also, it was never explained why it should take 10 hours to get a friendly judge or Alberto Gonzales to grant the authority that these unnamed lawyers thought was necessary.
Well, I’m glad we can agree on that, and yes some important details are definitely missing her. I’m assuming there is a legal reason for this hold up but maybe it was just a screw up on someones part at the NSA.. Again, important details missing..
Second, you make a big deal of the fact that the goal of the wire-tapping was to find the kidnappers of the three US soldiers. But in our society Freedom and Liberty are the paramount importance. Why don’t we do the grant the same paramount importance to recovering a kidnapped child? Why not ignore laws regarding unlawful search and seizer and conduct a house-to-house search and shut down all roads until the child is recovered. Surly, the ‘inconvenience’ of this to innocent citizens is less important than the life of a child.
That was strawman number one. I never implied that all wiretaps should be allowed and that nobody should have these Constitutional protections. I simply said that if the law is slowing down a search for recently kidnapped soldiers because the suspect’s cellphones go through the US, then the law should be changed. I believe we both agreed on that point, right?
I was wondering when you were going to play the September 11 card. Since you brought it up, lets review a few facts. 15 of the 19 hijackers where from Saudi Arabia and none of them were from Iraq. Saddam Hussein absolutely hated Al-Qaeda. He was a secular dictator. That was the cause of the war between Iraq and Iran, back when Saddam Hussein was our friend and ally (remember THAT?) Let us also remember WHY those insane jihadists staged their attack. They consider Saudi Arabia to be holy ground and want out bases out of their country. How many foreign countries have bases on US soil. How would you feel if they did? Further, in the past few days, it has been revealed that the telecom wiretapping program was started BEFORE 9/11, so there wiretapping that has Freedom-loving Americans like me so upset doesn’t really have anything to do with the ‘war on terror’.
Ok, now you’re just ranting. For more info on the relationship between Saddam and Al Qaeda, please read “The Connection”. To pretend that Saddam’s secular tendencies kept him from associating with jihadist networks is just silly. You do know he was the number one supporter of Palestinian terrorists before 2003, right.. And Abu Nidal.. The list goes on and on. Hell, he used to host an annual jihadist convention in Baghdad every year. It is well documented and you can research it yourself. Many of your comments only make sense in light of your ignorance of these basic indisputable facts..
Of course we live in a different world than that of 230 years ago. But I must reiterate that we were under occupation by the worlds most powerful Empire. They were forcing Americans to quarter red coats in their private homes. They were restricting American trade. They shot people in the street in Boston. The red coasts killed many more that 3000 Americans. They just didn’t do it all at once.
Uhm, yeah.. That eas kind of my point here. Back then an attack like that wasn’t possible. Today it is so rapid collection of intelligence is more important than ever, in my opinion. Again, I’m not saying this gives the government free reign at all, but it must be taken into account when crafting legislation that must find the proper balance on these issues..
Al-Qaeda hasn’t managed another attack on US soil since 2001. You are as aware of these facts as I am.
Agreed, and I believe it has a lot to do with the intelligence we gather and how we allow the people protecting us do their job.
You go on to say that the Soviets were, while our enemies, rational actors. I agree. Does that mean you also agree that the trillions we spent on the Cold War arms race and SDI were all wasted? After all, no rational actor would use a nuclear weapon. Yes, an enemy who believes that if he ‘martyrs’ him self he’ll have 72 virgins waiting for him in heaven is absolutely insane and a dangerous person. But all we have to do to defuse them is close our bases on what they think of as their holy land.
And that is where your ignortance of our enemies kicks in. The threat from radical Islam is not about bases in Saudi Arabia. Do you know the writings of Sayyad Qatub (sp?) This isn’t about bases. It is about much more. These people believe that their purpose on the earth is to fight all non-muslims until all the world submits to the will of Allah. I wish I was at home and had some good links to send you, but I’m actually posting this from my blackberry at the little league field, so I apologize for not having more info handy to share at the moment. Your positions make more sense if you really believe this is about bases in the land of the two holy places.. Trust me, it is not. It is about Allah’s command to spread Islam throughout the world and the fact that we work to spread freedom and free markets instead..
Thomas Jefferson did indeed write about Muslims, especially the Barbary Pirates who were interfering with American trade in the Mediterranean. I am quite familiar with Jefferson’s positions however, I do not agree with all of them, and neither did Alexander Hamilton who, in an 1801 letter to James Bayard, called Jefferson “a contemptible hypocriteâ€
Yes, the fueds between Hamilton and Jefferson are well known to us all. That wasn’t my point.
It is interesting that you bring up anthrax, because all of it was sent to democrats in congress and progressives in the media and the perpetrators have never been caught, nor has there been a concerted effort to do so. This, plus the fact that the letters were mailed from within the US makes my doubt that the poisoned letters came from the jihadists.
Uhm, that wasn’t my point. My point was that a “super-empowered” Jihadist with access to anthrax was a risk President Bush wasn’t willing to take, and I agree with him.
Not am I aware of them using sarin gas. Saddam Hussein did use it. He got it from us.
If you’re worried about nuclear attack, I encourage you to support the careful search of every single bit of cargo entering US ports. The chance of the jihadists getting a hold of an ICBM is so infinitesimal as to be absurd. Shipping a nuclear bomb hidden in a cargo hold is far more likely.
Well, there is something we do agree on!
Bringing up modern communications and comparing it the paper-only communications of the late eighteenth century only hurts your argument because Amendment IV guarantees “The right of the people to be secure in their persons, houses, papers and effects against unreasonable searches and seizers, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.â€
I never said we should give up that right and protection. Oi just said it seems stupid for those protection to apply to a terror suspect speaking on a cell phone in Iraq.
The telecom wiretapping is a clear violation of this vital principal of our society.
I disagree. Even when the conversation is between two people on cell phones in Iraq? Since when did non-citizens enjoy Constitutional protections while in another nation?
I take ALL religious fanatics seriously; weather Muslim, Catholic, and Evangelical Christian of what have you. They are all a danger to our secular society. You will probably disagree with me, but I believe this principal is more important than the lives of three soldiers who swore to protect and defend the Constitution, to the death if necessary.
Well, you assume too much. I am not a fan of any type of fundamentalist either, but the lives of our soldiers ARE more important to me than the rights of terror suspects talking on cell phones in Baghdad. Yet another strawman..
I understand that you are afraid, Del.
Then you know even less about me than I thought. I’m not afraid of Jihadists. I am prepared to defend myself and my family against any threat that comes about. I’m just angry that the irrational fear of George Bush from people like you is going to cause us to legally tie ourselves in knots and make it easier for these super empowered jihadist to hit us again and hit us hard. It’s not fear you sense, my friend, it is my aggrevation with your irrational fear of our own government.
A lot of Americans have been afraid since the Supreme Court installed GWB as the Commander-in-Chief. Parents restrict their children’s freedom to keep them safe from our sometimes-dangerous society. But I am not a child. I am an adult, and as an American adult I chose Freedom and Personal Liberty over safety.
And now your true colors come out clear. The SCOTUS installed GWB? Good Lord…
I’m not wasting my time with you anymore. That pretty much told me all I needed to know. I guess the 2004 election didn’t really count either. Or did all those people vote for President Bush because they were all so afraid??
Whatever.. You let the mask slip, my friend.
Your mouth keeps moving but all I hear from now on is Blah, Blah, Blah..
October 17th, 2007 at 1:55 am
Alright, Del
Even if you don’t respond or even read this, I must respond to some of what you have said.
Del: I’m assuming there is a legal reason for this hold up but maybe it was just a screw up on someones part at the NSA.. Again, important details missing.
Actually it was recently been reported in American Spectator that there was no legal problem. Rather, bureaucratic processes established by the Bush administration caused the hold up.
Del: I simply said that if the law is slowing down a search for recently kidnapped soldiers because the suspect’s cell phones go through the US, then the law should be changed. I believe we both agreed on that point, right?
Sure we do. Only problem is that the law is NOT slowing down any searches for soldiers in Iraq. This claim, by the original poster is the real straw man, red herring, etc.
Del: For more info on the relationship between Saddam and Al Qaeda, please read “The Connectionâ€. To pretend that Saddam’s secular tendencies kept him from associating with jihadist networks is just silly. You do know he was the number one supporter of Palestinian terrorists before 2003, right.. And Abu Nidal.. The list goes on and on. Hell, he used to host an annual jihadist convention in Baghdad every year. It is well documented and you can research it yourself.
I do have to admit that I have not read “The Connection†I have read articles calling it a pack of lies. SH support of the Palestinians had nothing to do with jihadism. The Palestinians want their land back. Now, personally I think that Egypt and in particular Jordan should be supporting the Palestinians and giving them land to live on in their countries and that their failure to do so may very well be rooted in a desire to have proxy soldiers fighting against the Israeli Jews. But that doesn’t really have anything to do with international jihadism. I also have to challenge you assertion that SH held an annual jihadist convention in Baghdad every year. When did you uncover this information? I tried to research it and have found no reliable source to back it up. Given SH hatred of Shi’ites this seems extremely unlikely. If it is true, why do you suppose the US counted him as an ally until the 1991 invasion of Kuwait?
Del: The threat from radical Islam is not about bases in Saudi Arabia. Do you know the writings of Sayyad Qatub (sp?) This isn’t about bases. It is about much more.
Al Qaida isn’t led by Sayyad Qatub. They are led by Osama bin Ladin, who has stated that it’s the bases in SA that has him so upset.
Del: These people believe that their purpose on the earth is to fight all non-Muslims until all the world submits to the will of Allah.
Of course SOME of them do, and they are often the most vocal, so those are the voices we here. Fanatical Christians are exactly the same. But if we weren’t behaving like an empire, they would not have as many recruits. The VAST majority of Muslims have no desire to destroy us. Islam is, at its heart a religion of peace. Before you go bringing up the conquest of the Middle East by early Muslims, recall that the Christian crusaders were behaving in exactly the same way back then.
Del: It is about Allah’s command to spread Islam throughout the world and the fact that we work to spread freedom and free markets instead.
Unfortunately, this is not always the case. There are numerous examples during the Cold War (not very long ago) where the US overthrew a democratically elected leader and installed a brutal dictator.
If you’re worried about nuclear attack, I encourage you to support the careful search of every single bit of cargo entering US ports. The chance of the jihadists getting a hold of an ICBM is so infinitesimal as to be absurd. Shipping a nuclear bomb hidden in a cargo hold is far more likely.
Del: Well, there is something we do agree on!
Well, GWB doesn’t agree. Currently, less than 1% on incoming cargo is inspected.
Del: I never said we should give up that right and protection. I just said it seems stupid for those protections to apply to a terror suspect speaking on a cell phone in Iraq.
It might seem stupid to you, and to a certain extent I agree with you. Thomas Paine would not have (reference his quote a few posts back).
Del: Even when the conversation is between two people on cell phones in Iraq? Since when did non-citizens enjoy Constitutional protections while in another nation?
They don’t apply to non-citizens talking on cell phones in Iraq. Again, TP thought they should, but he was, admittedly, one of our more radical Founders.
Del: I am not a fan of any type of fundamentalist either, but the lives of our soldiers ARE more important to me than the rights of terror suspects talking on cell phones in Baghdad.
Again, these suspects are not protected. The incident that started this whole thing was recently revealed to have been not a legal problem, but a NSA screw-up.
Del: And now your true colors come out clear. The SC installed GWB? Good Lord…
Um… yes. The SC ordered Florida to stop the vote recount. The final recount (which, sadly was finished after GB was already installed and thus didn’t ‘matter’) showed that Al Gore won the popular vote in Florida.
Del: That pretty much told me all I needed to know. I guess the 2004 election didn’t really count either. Or did all those people vote for President Bush because they were all so afraid??
Here you ignore the established fact that there were not enough voting machines in Ohio’s urban, primarily minority neighborhoods and thousands gave up after waiting six hours in the rain.
Del: Your mouth keeps moving but all I hear from now on is Blah, Blah, Blah…
Typical. A Bush-lover looses on the facts so he plugs his ears and says, “Blah, Blah, Blah, I can’t hear you…Blah Blah…â€