John had earlier discussed the legality of the National Security Agency electronic intercept program here, here, and again here. But in a subsequent post -- 72 Hours: Who Could Ask For More? -- John takes on the Democratic claim that Bush could simply have used the "72-hour [emergency] provision of FISA" instead of issuing a presidential directive to surveil without passing through the FISA court.

Hinderaker begins:

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.

John then quotes extensively from FISA itself; long boring legalese snipped to avoid brains turning to tapioca.

[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: ...

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...."

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.

With that in mind, compare what Victoria Toensing wrote -- remember her? her column is actually the subject of this convoluted post! -- about the physical reality of obtaining a FISA warrant, which she often had to do in her capacity as deputy assistant attorney general in the Reagan administration with the "terrorism portfolio."

And to correct an oft-cited misconception, there are no five-minute "emergency" taps. FISA still requires extensive time-consuming procedures. To prepare the two-to-three-inch thick applications for non-emergency warrants takes months. The so-called emergency procedure cannot be done in a few hours, let alone minutes. The attorney general is not going to approve even an emergency FISA intercept based on a breathless call from NSA.

For example, al Qaeda agent X, having a phone under FISA foreign surveillance, travels from Pakistan to New York. The FBI checks airline records and determines he is returning to Pakistan in three hours. Background information must be prepared and the document delivered to the attorney general. By that time, agent X has done his business and is back on the plane to Pakistan, where NSA can resume its warrantless foreign surveillance. Because of the antiquated requirements of FISA, the surveillance of agent X has to cease only during the critical hours he is on U.S. soil, presumably planning the next attack.

I am very impressed that Hinderaker's analysis of the actual statute itself, and his personal knowledge of how long it takes judges to shift themselves, dovetails perfectly with Victoria Toensing's real-world experience filling out such FISA applications in actual terrorism cases. As Hannibal Smith says, "I love it when a plan comes together." Or in this case, when legal analysis and practical application buttress each other.

But John Hinderaker continues:

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...."

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.

And, like a tennis ball, back we fly to Ms. Toensing:

Even if time were not an issue, any emergency FISA application must still establish the required probable cause within 72 hours of placing the tap. So al Qaeda agent A is captured in Afghanistan and has agent B's number in his cell phone, which is monitored by NSA overseas. Agent B makes two or three calls every day to agent C, who flies to New York. That chain of facts, without further evidence, does not establish probable cause for a court to believe that C is an agent of a foreign power with information about terrorism. Yet, post 9/11, do the critics want NSA to cease monitoring agent C just because he landed on U.S. soil?

So much for Al Gore's risible claim that the FISA rules allow "ample flexibility and an ability for the executive to move with as much speed as desired." Once again, Hinderaker and Toensing are perfectly in synch, despite writing separately more than a week apart; and only the man who would be king is left twisting slowly, slowly in the wind.

Simply put, the NSA electronic surveillance is not just the law, it's also a good idea. It is, in fact, a necessary, urgent, and irreplaceable arrow in the quiver of intelligence-gathering to thwart terrorist attacks.