Alex Jimenez As FISA Poster Boy
If some conservatives have their way, Alex Jimenez will become to an expanded domestic-spying program what Graeme Frost became to the expanded S-CHIP program: A human face on a contentious political issue.
Frost, of course, is the 12-year-old who gave a Democratic Party radio rebuttal to President Bush’s veto of a bill to expand the State Children’s Health Insurance Program that had passed Congress with broad bipartisan support.
Before you could say “Michelle Malkin,” conservative and right-wing bloggers and talk-show blatherers were dumping all over the Frost family because Graeme and sister Gemma were eligible for the Maryland version of S-CHIP even though they were card-carrying members of the middle class.
Jimenez, on the other hand, was kidnapped along with two fellow troopers by Al Qaeda insurgents in Iraq’s Triangle of Death in May and almost certainly was executed.
Jimenez was much in the news after he went missing because of his wife, Yaderlin, who like him is a native of the Dominican Republic but entered the U.S. illegally prior to marrying the Army specialist and naturalized citizen in 2004. Yaderlin had been slated for deportation because she had not applied for a green card, but can stay in the U.S. because an immigration lawyer who had the support of the Army intervened in her behalf and she was granted a card.
Well, Jimenez is now back in the news — at least in The New York Post and on Fox News, it’s identical TV twin, because of claims that U.S. intelligence officials apparently got bogged down for nearly 10 hours seeking approval to use wiretaps against the terrorists suspected of kidnapping he and the other men.
I say apparently because The Post, which never misses an opportunity to grind its political ax on its news pages, noted before even providing details of what happened to Jimenez that Congress plans to vote on a bill this week that leaves in place legal hurdles in the Foreign Intelligence Surveillance Act (FISA). These apparently include the need to get permission before a cell phone conversation between two people in Iraq is monitored because those communications typically are routed through U.S. hubs.
The Post, of course, is dead set against any hurdles and safeguards and wants the government’s powers to spy on its citizens to be expanded.
The newspaper says that a search to try to rescue the men was quickly launched, but soon bogged down because lawyers abiding by the FISA law were told that special approval from the attorney general would be required first.
The Post says that:
“For an excruciating nine hours and 38 minutes, searchers in Iraq waited as U.S. lawyers discussed legal issues and hammered out the ‘probable cause’ necessary for the attorney general to grant such ‘emergency’ permission.
“Finally, approval was granted and, at 7:38 that night, surveillance began.
” ‘The intelligence community was forced to abandon our soldiers because of the law,’ a senior congressional staffer with access to the classified case told The Post. ‘How many lawyers does it take to rescue our soldiers?’ he asked. ‘It should be zero. ‘ “
It would be nice to think had there not been a delay that Jimenez and his colleagues would have been located and rescued, but that is assuming an awful lot since the ambush and abduction occurred in a hotbed of insurgent activity where the lay of the land made a search very difficult and the locals were extremely uncooperative, two salient factors that The Post of course does not take into consideration in its rush to judgment.
Meanwhile, Think Progress makes a convincing case that unnecessary red tape and the incompetence of Alberto Gonzalez’ Justice Department are to blame.
Can’t exceptions to the FISA rule be made in extraordinary emergencies like this? Of course they can – and the The Post doth protest too much in wanting to strip the bill of all protections.
Verizon, for one, seems quite willing to make exceptions: A Congressional committee was told this week that the telecom giant has provided customers’ telephone records to federal authorities in emergency cases without court orders hundreds of times since 2005, in addition to the thousands obtained through subpoenas and court orders.
While young Frost and his family were skewered unmercifully in what has passed for an S-CHIP debate, don’t expect liberals and other opponents of the FISA expansion to try to even lay a finger on Jimenez.
He had as little to do with FISA as Frost had to do with S-CHIP. Not that that mattered to Malkin and her fellow swiftboaters.
22 Responses to “Alex Jimenez As FISA Poster Boy”
Who to blame?
a) The Constitution
b) The incompetence of the Bush Administration
Hmmm….
How are a Shia or Sunnis insurgent group to be monitored by wiretaps in the US. Wouldn’t military intel have a free reign in Iraq. FISA isn’t required in Iraq, a foreign country. Also, does alQaeda in Iraq call the Krugman’s and Pelosi here or do they call their friends in Jordan and Saudi Arabia?
Rudi:
I may have written more about the Jimenez abduction and search than any non-military blogger (at least 15 posts) and I know a fair amount about the region. I cannot for the life of me fathom how intercepting insurgent cell-phone communications — whether they went through U.S. hubs or any other hubs — would have made a difference.
Time was of the essence, of course, but as has been the case from the outset of the war, U.S. forces and intel assets were spready extremely thin. This is a reason why the insurgents were able to pull off the ambush in the first place.
As it was, it took several hours to seal off the area to try to keep the insurgents from escaping with Jimenez and his mates. I don’t think they and their abductors got very far. One of the two other soldiers was found floating in the Euphrates about 30 miles downriver and I think we have to take Al Qaeda in Iraq at its word that Jimenez and the third soldier were executed and buried — I suspect not far from the ambush site.
I am aware of instances in which intercepted cell phone communications led U.S. forces to high-priority individuals, but these were not spur-of-the-moment situations.
I wrote only what I have read and myself know, but it is my supposition that the entire tack that The Post is taking is, as Colonel Potter would put it, pure unadulterated horse hockey.
As I understand it, this debate is about foreign to foreign cell calls redirected through US hubs. Without changes to FISA, these would require judicial sign-offs.
Personally, I rather doubt time factored significantly here. But it seems nothing can be done legislatively today in America without fronting the campaign with a boy, an infant, or a fluffy bunny.
I think the real story here, as Shaun implies, is about this infantalization of American politics.
Also, I don’t think we should ignore how legal red-tape can bog down close pursuit. I recall how early in the Afghanistan campaign a Predator on patrol sighted bin Laden and its operator requested firing authority…which was relayed to the Pentagon, but it was evening, and as hostilities had not opened in Afghanistan legal counsel delayed the decision to consider the implications of violating Afghan sovereignty with a military strike…by the time it reached Rumsfeld who gave authorization a strike was no longer an option.
While Shaun cites Verizon, who was willing to make exceptions, he should also cite Qwest which wasn’t.
Also, these carriers opened themselves to legal jeopardy in complying with government requests. Liberal activists are foaming at the mouth to file lawsuits…and are also currently lobbying to block retroactive protection legislation in Congress.
A week or so back there was the story from Iraq of a soldier planting evidence on insurgents who were killed in battle to make doubly sure that no one in the US could sue him for violating their rights.
This is a strange war…where those trying to defend the US live in fear of lawsuits by liberals opposed to the war.
I no longer think the US can win this long war. When monitoring foreign2foreign calls becomes a line-in-the-sand for opponents of the war, it does not bode well for success.
We also haven’t heard much about the Iraqis-American translator kidnapped meeting his wifes family in Iraq. Maybe Jack Bauer could help in Iraq for 48 days.
I should add that this campaign – which seems directed by the WH – is particularly disgusting if the claims are not substantiated.
I don’t understand why Iraqi cell phones should use US “hubs”. Nor, like Shaun, do I find the time issue convincing.
But using a dead American soldier…who was likely tortured and mutilated…to front a campaign is absolutely morally repugnant if the claims are not substantiated.
I disagree with Shaun’s conclusion…this is not about Malkin swiftboating…this is about the WH. The claims should be investigated.
But if they are bogus BS, someone should be roasted in hell. Using a dead US soldier as campaign fodder is appalling IMHO.
It’s just despicable to exploit dead soldiers like this to push unrelated changes to the FISA laws.
First, in a pinch, you can wiretap for 72 hours before you need to actually get a warrant under the current laws.
Second, there is a consensus among Democrats and Republicans that foreign to foreign calls routed through the U.S. should not require warrants.
It does seem that the consensus has been reached on that issue, Chris- and yeah, it’s really annoying when politicians create the false impression that their opponents are blocking something that they really are not, isn’t it? (cough, cough…SCHIP coverage for the children that it was originally intended for).
I know it. A post about a story in the NY Post, and it’s the Democrats’ fault.
The story had its facts wrong.
The father of the NY post: Murdoch
The father of FOX, WSJ et al: Murdoch
The danger of one man or conglomorate controlling so many news outlets is obvious.
The reaction in Washington: silence
It was my understanding that FISA courts allowed wiretaps to begin immediately and allowed up to 3 days after the fact to get signed off by proper authorities, specifically for cases such as this. I smell a rat with this story. Anyone else with a better understanding of FISA rules please chime in.
Sam,
The guys at Stubborn Facts had a pretty good post on it. My understanding of the problem is that no one is willing to proceed until the attorneys vet it out first to make sure they’ll be able to get the retroactive warrant- it’s not like those will come automatically, so they still have to jump through the hoops to make sure that the situation fits all the requirments for the warrant first; even if they don’t have to actually secure the warrant, they still have to make sure they’ll be able to later.
Well thats certainly possible. However I find it unlikely that the intelligence agency responsible for this operation would care too much. They weren’t looking for evidence to use in a courtroom that could be suppressed for being gathered with a bad warrant, they wanted the location of the troops so our troops could go get them.
Also, whats the penalty for having a wiretap up then getting it yanked in 3 days after its been reviewed and found not valid? Also, FISA has withheld what, 12 out of 20,000 warrant requests back? I seriously doubt they have a dire fear of consequences of an invalidated warrant. It sounds like you’re saying the FISA laws weren’t holding this back, but CIA lawyers too chicken to process the warrant even though troops were on the line?
Ror every rule, there is an emergency exception.
If finding a captured soldier is at stake, all it takes is a rational response to a phone call up the chain of command, and no lawyers are required!
I don;t think soldiers need consult lawyers in tricky battle situations to find out exactly what the rules if engagrement say to cover a present complex situation.
.
CIA lawyers being chicken may be one man’s interpretation, but if Tully is correct about the penalties then I’d say they have good reason to be ‘chicken’:
(from the comment section of this post at SF):
Is there a penalty if the AG turns out to be wrong?
Yes. The penalty for engaging in electronic surveillance “under color of law” outside of the very specific statutory authorization and without a warrant is “…a fine of not more than $10,000 or imprisonment for not more than five years, or both.” PER OFFENSE. There is a specific set of procedures and certifications that must be adhered to before an authorization can be issued. Do it any other way than by the book, and you have violated the statute. The “emergency” provisions have major gaping holes, including a lack of coverage for organized non-state actors. You know, like terrorists.
That’s before you consider the major political penalties. Penalties that have been continually paid over the last few years, and are still being continually paid, and have provided much fodder for much hyperbolic ranting.
Is there a provision requiring him to submit a complete brief? Or is it just a requirement to certify that he have a good faith belief that there’s probable cause?
In order, yes, and somewhat, but it still requires a certification justifying probable cause on very limited grounds. Grounds that do not extend to organized non-state actors. Grounds which are a little tough to prove instantaneously from the other side of the world. There is no “tap now and jump through hoops later and just say OOOPS! if we’re wrong” proviion to exempt the AG or anyone else from the statutory penalties. Still gotta jump through those time-eating hoops.
Soldiers in the field should not have to ask the AG in Washigton for emergency warrants to wiretap enemy communications in the field in the first place.
CS-
“Soldiers in the field should not have to ask the AG in Washigton for emergency warrants to wiretap enemy communications in the field in the first place”
Right. And if they use theri heads, they won’t, if there is an emergency.
This isn’t about lawyers. This is about guidelines for what to do in emergency situations.
The military and/or the DOJ don’t have that covered? That’s either laughable or another sign of incompetence.
People in command and with authority are duty boung to exercise it. No one said authoriy and power are risk-free. Using personal jusdgement is part of the job description in emergency situations. Having pre-thought out guidelines of how best to discharge their duties in emergency situations is a sign of xompetence.
To resolve all these ‘worries’, all it takes is one comaander to exercise his authority and to employ his best judgment, according to guidelines. Risk of penalties should be way, way down the list of his concerns, if he’s worth his salt.
I think everyone agrees soldiers in these situations should not have to wait for stateside approval in these situations. I was under the impression that was exactly what the 3 day clause was for. From what I’ve read the legal wording of FISA needs to have some updating, but I hope the Bush admin doesn’t use it as an excuse to bypass the laws altogether.
It just seems altogether too convenient for those who have misrepresented information as they needed for 6 years to have this come to light. But I’ll be reading on this as more info comes to light.
Sam,
If you do read up on this, you’ll see that this loophole has been discussed and debated for a long while now- the loophole being that the old FISA law didn’t allow for warrantless taps on foreign-foreign communications if they were routed through hubs in US- because the old law didn’t take into account the new technology and the way the global system is routed. A certain category of foreign-foreign calls were not able to be tapped into under the normal rules that would logically apply to them, because of this routing.
The fact that some people haven’t reported it that way (because some people seem to think that everything the Bush administration says has to be taken as the opposite of the truth), doesn’t mean that this isn’t so. Do some checking and I think you will see.
However, from what I can see, both the Dems and the GOP both now acknowledge that this is a problem and are in agreement about changing it. THere are other details that are still in dispute (mainly whether or not to retroactively exempt phone companies from penalty for having turned over call records, I think).
Doma: Yes, good plan. Let’s not make any laws about what the rules of engagement are, or if the laws prohibit a certain activity, let’s tell the soldiers and their commanders that they are wrong to follow the law and they should just use their judgement and worry about whether their activity was legal or not later.
CS-
You’ve turned what I’ve said around 180 deg.
We need laws. Laws need to be restrictive to prevent abuse due to lax or vague language.
No law can cover every emergency or every complication, however, or every law would turn into into a multi volume book collection, too cumbersome for anyone to read or comrprehend.
A good commander or leader will be able to respond in an emergency within the SPIRIT of the law, even if he is not sure how the letter of lthe law will apply when examined later. The spirit of the law matters, and it never evaporates.
Putting concern for penalties above reacting to or being intellectuallity prepared to deal with situations of emergency or exceptions is the sign of an unqualified leader. No law could be specific enough to cover his butt 24/7.
f we pick any war or any battle, we’ll be able to find
commanders by the truckload, but few would be found paralyzed in the face of the need to act, because of concern for pernalties.
These arguments sound as if complex and compelling situations in war, or peace, were never encountered befoire.
Do you think soldiers have refrained from stealing a chicken if hungry just because the rules said they shouldn’t? How many of those do you think have been court martialed for theft? We haven’t needed elaborate laws describing exactly when a chicken could be legitimately stolen, or laws specifically naming chicken theft as a means of survval. We’ve got along just fine without such laws.
IMO this is just an attempt to nitpck in order to discredti FISA provisions.
I see no real life situation that couldn’t be handled with the provisions as they are.
Doma,
Frankly I see no evidence that you’ve read up on what the statutes actually say, or why some are saying it’s a problem. It’s not that they’re operating in a gray area if they don’t seek permission for the wiretaps in these cases- it’s that they would be specifically violating the law, knowingly.
Apply the same logic to interrogation procedures. Should we not have boundaries to specify which procedures are acceptable and which are not? And then once those boundaries are written into statute, would you similarly argue that the military interrogators should just disregard them, as long as they feel they’re operating in the spirit of the law or as long as they feel there’s an emergency which requires an exception?
We already do have laws in place to cover these things, and in the case of FISA there is a known problem in one of the laws. Why would anyone oppose fixing that problem, and instead advocate that the people in the field should just ignore it and risk serious penalty for doing so? If you assume that no one is really going to punish them, then if that’s true then the same people who wouldn’t punish could also just prevent the whole mess in the first place by changing the law. This isn’t something that’s a judgement call on a case by case basis- it can easily be handled by having the existing law stop treating calls that route through the US (those that are really foreign-foreign calls) as domestic communications.
And Congress has already come to an agreement on that change, so I’m not sure why you still want to argue against it.
It’s strange that the people who claim to distrust the government the most in some areas, can’t rust it enoudh in others.
Expanidng wiire-tapping measures is dangerous because of the danger of misuse is great.
Long before the WOT, the government misused its power by bugging phones of such threats as Coretta King. How much the field of potential misuse has expanded since then!
It’s a mistake to imagine that the people caught in the web will always be some miscreant “they’, and that we, the good guys can count on always being immune. The past teaches us otherwise.
I don’t see any imaginable situation that couldn’t be handled with the stricter FISA restricions, and my opinion does not depend on the compromises Congress reaches or what Congress does in regard to any issue at all.
The ‘gray area’ consits of predicting whether 3 days later their reasons for wire tapping will be seen as legitimate.
It’s not really a gray area, though, It’s cowardly fear of penalties.
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