Post Haste

A missing Queens soldier becomes a journo-political pawn

Readers who picked up the New York Post on October 15 found a cover image of a young soldier in dress uniform and the headline "TAPPED OUT."

The front-page "exclusive" by Charles Hurt, the paper's Washington bureau chief, was about a delay in the search for Spc. Alex Jimenez of Queens, who was abducted in Iraq on May 12. According to the Post, the search for Jimenez was halted on May 15, as lawyers and intelligence officials got bogged down for nine hours in a debate over whether they had enough evidence to start surveillance on the unnamed terrorists who had kidnapped Jimenez.

"They just did not want to break the law, and I understand that," Jimenez's mother, Maria Duran, told the Post. "They should change the law, because God only knows what type of information they could have found during that time period."

Duran sounded understandably distressed at the news that lawyers were pondering the vexing issues of probable cause under the Fourth Amendment while her son was in the hands of Iraqi terrorists. However, it seemed fortuitous that her story appeared in the Post the very week that Congress was slated to debate bills to reform the Foreign Intelligence Surveillance Act, the wiretapping law passed in 1978 to regulate surveillance of suspected spies and terrorists inside the U.S. It was FISA, Hurt wrote, that had caused the delay, because the law applies to cell-phone conversations between two foreigners in a foreign country if the communication is routed through the U.S., as many overseas calls apparently are.

The Post's message was clear: Something had to be done by Congress to correct a law that was so obviously hurting our troops.

But the Voice has obtained a detailed timeline of the Jimenez matter that not only contradicts the Post's version of events, but also fixes the blame for delaying the search efforts not on the FISA law, but on officials in the Bush administration itself.

The Post drew on what it said was a timeline released by the director of national intelligence to conclude that lawyers for the National Security Agency had vetted an application to then–Attorney General Alberto Gonzales for emergency permission under FISA to intercept communications between the Iraqi suspects, whom the Post identified as members of an Al Qaeda–linked group calling itself the Islamic State of Iraq. After hours of discussion, "finally, the approval was granted and, at 7:38 that night, surveillance began."

"The intelligence community was forced to abandon our soldiers because of the law," an anonymous congressional staffer told the Post.

But according to a version of the DNI's timeline provided to the Voice by a congressional source, the NSA's top lawyer had agreed by 1 p.m. on May 15 that the surveillance could go ahead. It was actually Bush administration officials at the Justice Department who were responsible for the six and a half hours of further delay.

It's still not clear how the U.S. military in Iraq was able to identify the Iraqi suspects or discover their cell-phone numbers (and thus seek permission to eavesdrop on them), but in late May, Newsweek reported that Gen. David Petraeus, the top U.S. commander in Iraq, had told the Army Times that he had learned the kidnappers' names.

Surveilling foreign terrorists overseas became an issue only recently. FISA was passed primarily in order to regulate the surveillance of spies and terrorists inside the United States, not abroad.

But shortly before Congress's August recess, when the administration was pressing the Democrats to pass a law to strengthen FISA, House minority leader John Boehner told Fox News' Neil Cavuto about a ruling by the Foreign Intelligence Surveillance Court: that FISA procedures must apply to communications between so-called non-U.S. persons outside the United States if those communications were routed through the U.S. The Iraqis who captured Jimenez were clearly non-U.S. persons. Boehner's Fox News interview was followed on August 11 by a New York Times story that also mentioned the court ruling and reported that it had caused a big problem in surveillance. The capability to intercept foreigners talking to foreigners overseas had been severely impacted, an unnamed "senior intelligence official" said, by the need to get FISA warrants for some of those surveillances. It's not clear if the difficulties were because of a backlog of applications or for some other reason.

But this problem with FISA emerged only after the administration agreed to put its very controversial domestic warrantless-wiretapping program under the authority of the law. Consequently, the August law amending FISA that was passed in a hurry—and the bill currently being pushed by the Democrats in the House—are both focused on fixing that problem. Yet it's not clear how this problem arose in the first place. Philip B. Heymann, a deputy attorney general in the Clinton years, now a professor at Harvard Law School, says of FISA: "It was never intended to apply to people overseas who are not U.S. persons. But the administration keeps saying it applies to every interception in the United States, even between two foreigners [overseas]."

Detailed readings of FISA have left Heymann puzzled as to why the Bush administration believes the law applies to foreigners outside the country. Also, the history of FISA cases shows that there have been emergencies when the necessity for prompt action to save lives doesn't permit investigators to follow the provisions of FISA in a timely manner, and the courts have held that "exigent circumstances" can excuse these failures. It's hard to think of more exigent circumstances than those facing Specialist Jimenez when he was captured. But Republicans are pushing the idea that, now that Bush's wiretapping program has been put under FISA, the law severely restricts attempts to track down foreign terrorists on foreign soil.

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