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.
![](http://archives.lincolndailynews.com/2007/Sep/28/images/frontpage/small/quality_glass082407.png)
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 trouble tracking down Alberto Gonzales, then the attorney general. He was speaking at a conference of U.S. attorneys in Texas.
Justice Department officials had to make several phone calls to Gonzales' staff before they were able to speak directly with him to get his authorization for the surveillance, according to the timeline.
![](http://archives.lincolndailynews.com/2007/Sep/28/images/ads/current/peggyplace%20bca%20071007.png)
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 timeline provides a detailed look at the government's actions.
The soldiers were ambushed on May 12 south of Baghdad. On May 13 and 14, intelligence officials got leads on insurgent communications they believed were related to the case, and on May 14 the Foreign Intelligence Surveillance Court was asked for and granted a court order to target some communications.
[to top of second column] |
![](http://archives.lincolndailynews.com/2007/Sep/28/images/ads/current/fcs_funeral-lda090907.png) 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 it would need a FISA order for some of it.
At 12:53 p.m., the NSA general counsel agreed that all the requirements for an emergency FISA authorization existed. The attorney general makes the authorization.
From 12:53 p.m. until 5:15 p.m., "administration lawyers and intelligence officials discussed various legal and operational issues associated with the surveillance."
At 5:15 p.m., they made the formal request for emergency authority to the Justice Department's FISA office, the Office of Intelligence Policy and Review.
Fifteen minutes later, the OIPR attorney on duty attempted to reach the solicitor general, Paul D. Clement, who in Gonzales' absence was acting attorney general. Clement had left for the day.
Nearly two hours later, at 7:18 p.m., Gonzales authorized the requested surveillance. The FBI was notified, and at 7:28 p.m., the FBI notified intelligence agencies and personnel of the approval. Surveillance began at 7:38 p.m.
![](http://archives.lincolndailynews.com/2007/Sep/28/images/ads/current/roger%20webster%20const%20bch%20050207.png)
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.
Rep. Heather Wilson, R-N.M., a member of the House Intelligence Committee, last week cited the incident as evidence that the old law had "compromised American lives." Reyes, however, said the delay was not due to the law.
"The emergency provision was there. It works. It takes a phone call," Reyes said Sept. 20 in a tense exchange with Wilson after a committee hearing.
The Justice Department believes the problem is not how long it took to get the emergency approval but that approval was needed at all to intercept foreign communications.
"Why should we have to go through this process of establishing probable cause to conduct surveillance of Iraqi insurgents, regardless of whether it takes an hour, two hours, three hours or 12 hours?" Boyd said.
Last week Reyes asked the DNI's office for permission to release the timeline. It is contained in a Thursday letter to Reyes from Lt. Gen. Ronald L. Burgess, the acting principal deputy director of national intelligence.
[Associated Press; by Pamela Hess]
Copyright 2007 The Associated Press. All rights reserved. This
material may not be published, broadcast, rewritten or
redistributed. |