We've been getting emails from liberals demanding to know why we haven't written about the 72-hour provision of FISA, which, they say, definitively proves that there couldn't possibly have been any need to go outside the FISA structure for purposes of speed. Actually, there are quite a number of FISA provisions that we haven't written about, but, since the left seems to be putting so much emphasis on this one, here goes: why the 72-hour clause doesn't eliminate the problem of FISA delay.

First of all, here is the provision in question, 50 U.S.C. Sec. 1805(f):

(f) Emergency orders

Notwithstanding any other provision of this subchapter, when the Attorney General reasonably determines that—
(1) an emergency situation exists with respect to the employment of electronic surveillance to obtain foreign intelligence information before an order authorizing such surveillance can with due diligence be obtained; and
(2) the factual basis for issuance of an order under this subchapter to approve such surveillance exists;
he may authorize the emergency employment of electronic surveillance if a judge having jurisdiction under section 1803 of this title is informed by the Attorney General or his designee at the time of such authorization that the decision has been made to employ emergency electronic surveillance and if an application in accordance with this subchapter is made to that judge as soon as practicable, but not more than 72 hours after the Attorney General authorizes such surveillance. If the Attorney General authorizes such emergency employment of electronic surveillance, he shall require that the minimization procedures required by this subchapter for the issuance of a judicial order be followed. In the absence of a judicial order approving such electronic surveillance, the surveillance shall terminate when the information sought is obtained, when the application for the order is denied, or after the expiration of 72 hours from the time of authorization by the Attorney General, whichever is earliest. In the event that such application for approval is denied, or in any other case where the electronic surveillance is terminated and no order is issued approving the surveillance, no information obtained or evidence derived from such surveillance shall be received in evidence or otherwise disclosed in any trial, hearing, or other proceeding in or before any court, grand jury, department, office, agency, regulatory body, legislative committee, or other authority of the United States, a State, or political subdivision thereof, and no information concerning any United States person acquired from such surveillance shall subsequently be used or disclosed in any other manner by Federal officers or employees without the consent of such person, except with the approval of the Attorney General if the information indicates a threat of death or serious bodily harm to any person. A denial of the application made under this subsection may be reviewed as provided in section 1803 of this title.

So this is the Left's argument: the speed problem is solved. All the government has to do is begin the electronic surveillance immediately; notify the court; and the government then has 72 hours to get the necessary paperwork in front of the FISA judge, and get the judge to sign the FISA order.

Simple? Not exactly. FISA applications are detailed and require considerable time to prepare. Here are the requirements:

(a) Submission by Federal officer; approval of Attorney General; contents

Each application for an order approving electronic surveillance under this subchapter shall be made by a Federal officer in writing upon oath or affirmation to a judge having jurisdiction under section 1803 of this title. Each application shall require the approval of the Attorney General based upon his finding that it satisfies the criteria and requirements of such application as set forth in this subchapter. It shall include—
(1) the identity of the Federal officer making the application;
(2) the authority conferred on the Attorney General by the President of the United States and the approval of the Attorney General to make the application;
(3) the identity, if known, or a description of the target of the electronic surveillance;
(4) a statement of the facts and circumstances relied upon by the applicant to justify his belief that—
(A) the target of the electronic surveillance is a foreign power or an agent of a foreign power; and
(B) each of the facilities or places at which the electronic surveillance is directed is being used, or is about to be used, by a foreign power or an agent of a foreign power;
(5) a statement of the proposed minimization procedures;
(6) a detailed description of the nature of the information sought and the type of communications or activities to be subjected to the surveillance;
(7) a certification or certifications by the Assistant to the President for National Security Affairs or an executive branch official or officials designated by the President from among those executive officers employed in the area of national security or defense and appointed by the President with the advice and consent of the Senate—
(A) that the certifying official deems the information sought to be foreign intelligence information;
(B) that a significant purpose of the surveillance is to obtain foreign intelligence information;
(C) that such information cannot reasonably be obtained by normal investigative techniques;
(D) that designates the type of foreign intelligence information being sought according to the categories described in section 1801 (e) of this title; and
(E) including a statement of the basis for the certification that—
(i) the information sought is the type of foreign intelligence information designated; and
(ii) such information cannot reasonably be obtained by normal investigative techniques;
(8) a statement of the means by which the surveillance will be effected and a statement whether physical entry is required to effect the surveillance;
(9) a statement of the facts concerning all previous applications that have been made to any judge under this subchapter involving any of the persons, facilities, or places specified in the application, and the action taken on each previous application;
(10) a statement of the period of time for which the electronic surveillance is required to be maintained, and if the nature of the intelligence gathering is such that the approval of the use of electronic surveillance under this subchapter should not automatically terminate when the described type of information has first been obtained, a description of facts supporting the belief that additional information of the same type will be obtained thereafter; and
(11) whenever more than one electronic, mechanical or other surveillance device is to be used with respect to a particular proposed electronic surveillance, the coverage of the devices involved and what minimization procedures apply to information acquired by each device.

So a FISA application is no simple document, and Sec. 1805(f), notwithstanding that it contemplates an "emergency," provides no relief from the full filing requirement of Sec. 1804. The government has 72 hours from the time when a telephone is found in, say, Afghanistan, and the Attorney General gives the order to begin surveillance, until a FISA judge actually signs the order based on the government's application. How does that compare to the length of time it normally takes to obtain a FISA order?

Byron York wrote on ths subject last month:

In 2002, when the president made his decision, there was widespread, bipartisan frustration with the slowness and inefficiency of the bureaucracy involved in seeking warrants from the special intelligence court, known as the FISA court. Even later, after the provisions of the Patriot Act had had time to take effect, there were still problems with the FISA court — problems examined by members of the September 11 Commission — and questions about whether the court can deal effectively with the fastest-changing cases in the war on terror.

People familiar with the process say the problem is not so much with the court itself as with the process required to bring a case before the court. "It takes days, sometimes weeks, to get the application for FISA together," says one source. "It's not so much that the court doesn't grant them quickly, it's that it takes a long time to get to the court. Even after the Patriot Act, it's still a very cumbersome process. It is not built for speed, it is not built to be efficient. It is built with an eye to keeping [investigators] in check."

Lawmakers of both parties recognized the problem in the months after the September 11 terrorist attacks. They pointed to the case of Coleen Rowley, the FBI agent who ran up against a number roadblocks in her effort to secure a FISA warrant in the case of Zacarias Moussaoui, the al Qaeda operative who had taken flight training in preparation for the hijackings. *** Rowley wrote up her concerns in a famous 13-page memo to FBI Director Robert Mueller, and then elaborated on them in testimony to Congress. "Rowley depicted the legal mechanism for security warrants under the Foreign Intelligence Surveillance Act, or FISA, as burdensome and restrictive, a virtual roadblock to effective law enforcement," Legal Times reported in September 2002.

The Patriot Act included some provisions, supported by lawmakers of both parties, to make securing such warrants easier. But it did not fix the problem. In April 2004, when members of the September 11 Commission briefed the press on some of their preliminary findings, they reported that significant problems remained.

"Many agents in the field told us that although there is now less hesitancy in seeking approval for electronic surveillance under the Foreign Intelligence Surveillance Act, or FISA, the application process nonetheless continues to be long and slow," the commission said. "Requests for such approvals are overwhelming the ability of the system to process them and to conduct the surveillance. The Department of Justice and FBI are attempting to address bottlenecks in the process."

If it takes "days, sometimes weeks" to assemble a FISA application, then 72 hours is not long enough to be confident the process can be completed. Anyone who thinks that it is easy for multiple lawyers and officials to collaborate on a set of documents, present them to a federal judge and have the judge sign the order within 72 hours has, I'm afraid, no experience whatever at obtaining orders from federal judges.

And note what happens if the 72 hour deadline is missed. Suppose that the government gets the FISA application to a judge on time, but the judge has not yet signed the order when the 72nd hour expires. At that point, there is a forfeiture: the surveillance is to be terminated immediately, and information gained from the surveillance during that key 72 hour period cannot be used for any purpose--not even communicated to federal anti-terror employees--without a certification that it "indicates a threat of death or serious bodily harm to any person."

Given the complexity of the process, and the uncertainty whether a judge will actually sign an order on short notice even if it is presented to him in a timely fashion, the 72 hour "emergency" provision is completely inadequate to assure that surveillance can be initiated promptly, approved in a timely fashion, and continue without interruption.

There is a second, even more fundamental reason why FISA's 72-hour provision does not solve the "speed" problem. Note that even under a 72-hour "emergency" application, the government must certify that "factual basis for issuance of an order under this subchapter to approve such surveillance exists." That factual basis is the standard contained in Sec. 1805(a)(3)(A):

on the basis of the facts submitted by the applicant there is probable cause to believe that— (A) the target of the electronic surveillance is a foreign power or an agent of a foreign power

Now let's apply that standard to what must be a common situation where electronic surveillance is important: our forces capture a terrorist overseas who has a cell phone. Let's pretend that there are no procedural problems with the 72-hour provision, and that our soldiers can immediately begin intercepting communications to that cell phone in expectation of a warrant to be issued later. That won't do them a lot of good. There may be some incoming calls, but there will be no conversations to monitor since presumably our soldiers won't be answering the phone. So what they will be able to obtain is a list of phone numbers--numbers taken from incoming calls, and numbers recorded on the cell phone as having been called by the terrorist before he was captured. What we really need to do, to roll up the cell of which the captured terrorist was a member, it to begin monitoring those other phone numbers. Those are the telephones on which the other terrorists will be talking; among other things, they will be wondering what happened to their comrade.

But, as far as I know, the fact that a particular phone called a terrorist's (or suspected terrorist's) phone does not provide probable cause to believe that the owner of that phone is the agent of a foreign power. It could be the terrorist's mother; it could be his tentmaker or his landlord, dunning him for rent. Our soldiers could, of course, try to use means other than electronic surveillance to find out who owns the incoming and outgoing phone numbers; determine where those people are; follow them around and investigate; and perhaps, in some cases, after a lengthy delay, satisfy the FISA court that they have probable cause to believe that the person in question is the agent of a foreign power. That delay would have severe consequences. The optimum time to mine the phone numbers, and begin intercepting calls, is as soon as possible after capturing the original terrorist. This is, I would think, by far the most effective way to roll up a terrorist cell. But it isn't possible if probable cause for each phone number has to be proved to a FISA judge.

It's possible, no doubt, that in some cases the 72-hour "emergency" provision may work as intended. But, given what we know about the time it has historically taken to get FISA applications prepared and approved, it is obvious that there will be instances--unacceptable instances--where reliance on it will lead to a failed investigation. No wonder that President Bush was unwilling to put all of his eggs in that frail basket.