07/21/2008 05:12 am ET Updated May 25, 2011

FISA for Nothing

Now President Bush has the law he and Director of National Intelligence Mike McConnell set out, more than a year ago, to manipulate Congress and the media into giving them, perhaps it's time to consider once again the role played by Spc. Alex Jimenez. Jimenez was abducted by Iraqi insurgents in mid-May 2007 and probably killed very soon after.

But he provided a convenient peg on which McConnell and the rest could hang their specious claims about the flaws in FISA, claims that were believed by the Senate Intelligence Committee and by the New York Times.

On May 1 last year McConnell, speaking at a session of the Senate Intelligence Committee, asserted four or five times that intelligence officials wanting to intercept communications between two foreign terrorist suspects outside the United States in some circumstances needed to get a warrant from the FISA court. This requirement, never envisaged by the authors of FISA, was apparently slowing down intelligence collection at a time when the United States needed to be on constant alert lest a new terrorist attack should escape detection.

Within two weeks came the abduction of Jimenez, and some time after that we learned the awful truth -- that FISA requirements had delayed surveillance on his captors, wasting precious hours while National Security Agency lawyers worked their way through a bureaucratic maze to ensure that foreign terrorists' Fourth Amendment rights were respected! How that must have gone over with talk radio audiences! But it was never true. The FISA never required a warrant before intercepting communications between two non-U.S. persons (meaning those who are neither U.S. citizens nor permanent residents) in a foreign country.

Just consider that a military intelligence regulation, reissued in June last year, makes clear that all that was needed to eavesdrop on Jimenez's captors was that a designated officer in the field give the order. The regulation contains a page titled "Summary of Change." If FISA warrants were now required before wiretapping foreigners outside the U.S., as McConnell claimed, then why wasn't that change noted here, on this page? FISA, according to former Deputy Attorney General Philip Heymann, must be obeyed by any U.S. government agency conducting intelligence operations that come under its purview; so, if what McConnell had asserted was true, this regulation, Army Regulation 381-10, should have been amended to reflect that -- but it was not amended.

Regarding this, here is a brief excerpt from an e-mail correspondence about Jimenez that I had with a U.S. army public relations officer in Iraq:

MNF-I Press Desk Operations Officer
DSN 239-8799
VOIP 243-2221

-----Original Message-----
From: Robert Davey []
Sent: Wednesday, January 16, 2008 4:11 PM
Subject: Re: Spc. Alex Jimenez

Dear Major Alston,

I have been reading "Army Regulation 381-10," in particular section
5-6, governing electronic surveillance of non-U.S. persons abroad.

Under AR 381-10, the authority to approve surveillance may be
delegated by "any U.S. general/flag officer at the overseas location"
to "deputy commanders, chiefs of staff, senior intelligence officers,
corps commanders, division commanders, or the responsible MI brigade
or group commander."

As you may know, it has been reported that there was a 9-hour delay
in getting approval under FISA for surveillance on the insurgents who
abducted Spc. Alex Jimenez last May.

Can you explain why American officers in Iraq, eager to begin
surveillance of Jimenez's captors, did not consider AR 381-10
sufficient to authorize that surveillance?

Thank you,
Robert Davey

Major Alston replied thus:

On Jan 16, 2008, at 8:20 PM, Alston, Anton D MAJ MNFI STRATEFF COMMS
DIV wrote:


For security reasons, we do not discuss specific information of the
ongoing search for our missing Soldiers.

The best source for any other further information would be the
Soldiers' unit, the 2nd Brigade Combat Team, 10th Mountain Division, which is based at Fort Drum, New York.

You can contact the Fort Drum Public Affairs Office at:
(315) 772-5461

We are continuing to investigate their disappearance and I can't share
any other details at this time.

Thank you,

MAJ Alston

After I wrote and submitted this post the news was released that the U.S. Army had recovered the body of Alex Jimenez. The news was broadcast on NPR the morning of July 11, within 24 hours of President Bush's signing of the new FISA reform law.