So far, in the Senate Judiciary Committee hearing, McConnell hasn’t been asked about his account that FISA Court-created restrictions prevented the NSA for 12 hours from spying on Iraqi insurgents who had kidnapped U.S. troops. But McConnell did say something that touches on the issue.
Two knowledgeable sources have told me that McConnell’s account is inaccurate. One of them said that the real reason for the surveillance delay in the kidnapping case is attributable to cumbersome — and elective — Bush administration procedures for executing an emergency wiretap, and not court-created restrictions.
Today McConnell specified that no matter what, even in an emergency case — whereby surveillance can proceed for 72 hours before acquiring a FISA warrant — he’s still not going to hurry, as long as the probable cause standard holds. Referring to himself, the attorney general and the NSA director, he said, “We’re not going to go fast until we have the facts in front of us, because it ultimately has to withstand the scrutiny of the court.” The “facts” McConnell refers to here is the justification that the target of surveillance is the agent of a foreign power. In the case of the insurgent kidnappers, one of my sources said such a determination would take “approximately five seconds.”
We’ll see if anyone holds McConnell’s feet to the fire on this case. Leahy, early in the hearing, excoriated McConnell for misstatements the intelligence chief has made in recent testimony.