A couple of clarifications about that Sen. McConnell op-ed that Kathryn and Cliff mentioned earlier. The Senator is absolutely right when he writes about the absurdity of having to seek court permission to monitor foreign terrorists communicating with each other overseas, about the need to bring the outdated FISA law into the 21st century, and about the importance of immunizing the telecommunications companies so they are not penalized with ruinous lawsuits for cooperating with the government to keep Americans safe. The paragraph Cliff cited, though, is a bit confusing. Sen. McConnell writes:

If a Marine in Iraq captures a terrorist from a previously unidentified terror group, our agents will not be free to call the phone numbers in this terrorist’s laptop right away. If a call is placed to one of the numbers in this terrorist’s laptop and routed through U.S. phone lines, our agents will have to apply for a warrant, even though the people on the other end of the phone are half a world away, the terrorist with the laptop is not an American, and all this takes place in a theater of war.

The Senator is correct if he is suggesting that, because House Democrats allowed the Protect America Act to lapse and are blocking the bipartisan Senate bill, we would now need FISA court orders to eavesdrop on all the calls going to or from the phone numbers found in the terrorist’s laptop. Assuming those are foreign numbers, McConnell is quite right that court authorization is a foolish requirement since aliens outside the U.S. have no right to privacy protection under American law. Our intelligence community should be able to conduct surveillance without restrictions outside our borders — a showing of probable cause, which FISA mandates, should never be required overseas.

Nevertheless, this passage from the Senator’s op-ed could be read to suggest that court orders are now needed if our agents themselves want to call the phone numbers found in the laptop. I don’t think that’s what Sen. McConnell means. I think, again, that he meant to refer to our agents’ wanting to conduct surveillance on all the calls made to or from those numbers. Under federal law, no court order is ever required, anywhere (i.e., even inside the U.S.), to monitor a phone call when one side of the conversation consents to the recording.

If we captured a terrorist from a previously unidentified terrorist group, our agents could call the phone numbers in the laptop and record without limitation — they would need no FISA court order and the lapsing of the Protect Act makes no difference. If you’re a U.S. agent in Iraq and you want to call anyone, you can record the call because under federal law, as a participant, you may “consensually” record your own communications. (Inside the U.S., in some states it is a violation of state law to record your own conversations, but that has no bearing on federal law or communications overseas.)

Also, Sen. McConnell is correct to suggest that if we wanted to set up surveillance on the phone numbers on the laptop we would not be able to do that “right away.” But to be clear, that is not necessarily because of the delay entailed in seeking authorization from the FISA court. As House Democrats argue, FISA has a 72-hour emergency provision. That is, you can start recording without a court order and get judicial authorization within three days. Now, you would have to stop recording if the judge ultimately decided probable cause was lacking. (This, again, is part of what is ridiculous about applying FISA overseas, since aliens outside the U.S. have no American law right to the protection of a probable cause standard). But you would not have to wait for judicial authorization to begin surveillance.

So, if you don’t have to wait for judicial authorization, why is McConnell right to say our agents couldn’t begin surveillance “right away”? Well, it’s important to note that the 72-hour delay only excuses the otherwise necessary prior judicial authorization; it does not excuse the requirement of prior Attorney General approval.

Under FISA, emergency monitoring may begin only after the Attorney General himself determines that (a) “an emergency situation exists” requiring the commencement of surveillance “before an order authorizing such surveillance can with due diligence be obtained,” and (b) all the factual requirements for a judicial FISA order exist (i.e., there is probable cause that the target is an agent of a foreign power, there are no alternative investigative means by which the same information can be obtained, and all the necessary officials have given the required certifications). That can take a lot of time — the Attorney General of the United States is not out on the battlefield in Iraq, and a lot of other people in the varying chains of command have to sign off before between the time a Marine in the field realizes there’s an emergency and the presentation of the emergency to the AG.

As it is, FISA’s emergency procedures are too cumbersome for emergencies inside the United States where FISA was actually meant to apply. It is true lunacy to apply them outside the United States where FISA was never meant to apply.