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Iraq Wiretap Delay Not Quite as Presented
Lag Is Attributed to Internal Disputes and Time to Reach Gonzales, Not FISA Constraints

By Dan Eggen
Washington Post Staff Writer
Saturday, September 29, 2007

Director of National Intelligence Mike McConnell told Congress last week that a May wiretap that targeted Iraqi insurgents was delayed for 12 hours by attempts to comply with onerous surveillance laws, which slowed an effort to locate three U.S. soldiers who had been captured south of Baghdad.

But new details released this week portray a more complicated picture of the delay, which actually lasted about 9 1/2 hours and was caused primarily by legal wrangling between the Justice Department and intelligence officials over whether authorities had probable cause to begin the surveillance.

Justice officials also spent nearly two hours trying to reach then-Attorney General Alberto R. Gonzales to authorize the emergency wiretap. He was in Texas appearing before a gathering of U.S. attorneys.

Earlier, the DNI's attorney had determined that legal requirements for surveillance had been met, but Justice lawyers and intelligence officials spent four hours debating that issue and obtaining more evidence, according to officials and a summary of events provided to the House intelligence committee Thursday. Justice officials say the lengthy deliberations were necessary to ensure that the surveillance was legal.

The delay in obtaining a wiretap in the Iraqi case has been a central argument in the debate over the Foreign Intelligence Surveillance Act, which had been interpreted to require warrants for foreign telephone calls passing through U.S. exchanges. Congress stripped that requirement under temporary legislation approved last month that amended FISA.

McConnell has been criticized by Democrats for selectively disclosing classified information and for claiming that "some Americans are going to die" because of public debate over surveillance laws. Earlier this month, McConnell retracted Senate testimony that the new intelligence legislation had helped lead to the capture of terrorism suspects in Germany.

Many Democrats and civil liberties advocates have complained that McConnell and other administration officials exaggerated or misrepresented the Iraq wiretapping episode to score political points, largely by playing down how bureaucratic problems contributed to the delay.

"The idea that this incident has something to do with these soldiers getting killed is just outrageous," said Michael German, a former FBI counterterrorism agent who now works as policy counsel for the American Civil Liberties Union. "This is all internal bureaucracy. It has nothing to do with the law."

But DNI spokesman Ross Feinstein said yesterday that the delays were caused by unnecessary legal restrictions, which have since been removed as part of the changes approved by Congress last month.

"There shouldn't be any delay in focusing on foreign-to-foreign communications for Iraqi insurgents," Feinstein said. "It should take a matter of seconds, not hours."

Justice spokesman Dean Boyd said the case "presented novel and complex issues that we had to resolve" before approving the surveillance. "When the intelligence community presented the request for surveillance to the Department of Justice, these issues were not addressed."

The debate centers on the boundaries of FISA, which requires a special court to issue orders for surveillance of foreign intelligence targets inside the United States. The attorney general can authorize an emergency FISA order for as much as 72 hours without the court's approval, but Justice officials say he must have the necessary probable cause.

The intelligence court ruled earlier this year that warrants were required for foreign communications that passed through telephone or Internet exchanges inside the United States, even if both parties were overseas, according to administration officials. That led to the requests for FISA orders in the Iraqi case, officials said.

Administration officials began highlighting the Iraqi case as a problem in classified briefings with lawmakers over the summer, officials said. McConnell elaborated on the episode on Sept. 20 when he testified before the House intelligence committee. He said that it took "in the neighborhood of 12 hours" to obtain the emergency surveillance order.

"So we had U.S. soldiers who were captured in Iraq by insurgents, and for the 12 hours immediately following their captures, you weren't able to listen to their communications," asked Rep. Heather A. Wilson (R-N.M). "Is that correct?"

"That's correct," McConnell answered.

In fact, the timeline released this week shows that officials in Washington did not begin seeking the warrant until 10 a.m. on May 15 -- more than 86 hours after the three soldiers from the U.S. Army's 10th Mountain Division were reported captured. Authorities had already received approvals for other wiretaps in the case, the timeline shows.

Four U.S. soldiers and an Iraqi interpreter were found killed after the ambush on May 12, and the body of another soldier who was captured in the attack was found on May 23 in the Euphrates River several miles south of the site.

Two other soldiers believed to have been captured have not been found, but a militant group has claimed they are dead.

Maj. Webster M. Wright III, public affairs officer for the 10th Mountain Division, said in an e-mail that he was unaware of the wiretap discussions that occurred in Washington.

"We were given everything at the tactical level that we asked for, to include extra troops, intel assets, aviation, CID investigators, analysts and [human intelligence] specialists," Wright said.

Staff writer Josh White contributed to this report.

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