The argument that getting judicial approval takes too long simply doesn’t hold water

WRONG. As in DEAD wrong. The requirement that soldiers in the field on foreign soil must jump through time-eating hoops to get legal permission from DoJ and/or emergency warrants from domestic judges to track enemy communications that both originate and terminate in the field on foreign soil can AND DOES cost the lives of American soldiers and of innocent civilians–simply because with modern technology a cell-phone call originating in Iraq to another cell phone in Iraq may cross a US server or satellite in the routing before reaching that other cell phone in Iraq.

That’s not a hypothetical. It’s actually happened. Real US soldiers died real deaths after being abused and tortured by Al Qaeda faction terrorists. The Al Qaeda faction terrorists who killed them lived to kill more US soldiers and more innocent civilians when they might have been caught in short order. Had the commander in the field not lost 9 hours and 38 minutes witing for attorneys in the US to hammer out the paperwork required for a judicial override, that all might have been avoided.

The bodies of Spc. Alex R. Jimenez, 25, of Lawrence, Mass. and Pvt. Byron W. Fouty, 19, of Waterford, Mich. have never been found. The body of Private First Class Joseph J. Anzack Jr., 20, of Torrance, California was found floating in the Euphrates River eleven days later. He was buried at Arlington National Cemetery with full military honors.

Myself and others have warned LOUDLY about this very possibility over the last few years, ever since the NSA intercept program came into the news. We were right. The August 5th “temporary fix” to this problem can and should be made part of the permanent statute.

As far as the telecom immunity portion goes, it’s relevant to note that the telecoms acted in good faith in response to properly formulated written requests from DoJ and the White House for actions explicitly covered under FISA staute, that they had no reason to believe even a technical violation of any statute was involved in their compliance, and that NO showing that even a technical violation occured has been made–the plaintiff’s claims are all allegation. ALL other “players” under FISA have available to them an affirmative “good faith” defense that they followed the forms of the law and are thus exempt from liability. Such a defense would have gotten such suits against any other party involved tossed out on summary judgement before discovery.

Because the statute of the time did not specifically extend the affirmative “good faith” defense to the telecoms, the telecoms would have to go through the discovery process to assert “good faith,” which process the plaintiffs could and would use as a “fishing expedition” to grab info including stuff unrelated to the claims, at a cost of many millions to the defendants. Immunizing the telecoms for having complied in good faith to reasonable and proper written requests as allowed and required by the extant FISA statute is hardly unreasonable.

If you would like to examine the actual text of the bill in all its assorted forms, it’s S. 2248.

Dustin: Yes, it is, because there’s currently the necessity to make sure they have their ducks in a row (to do the legwork to ensure that they’ll get the retroactive immunity) before granting the request. As Tully said:

Had the commander in the field not lost 9 hours and 38 minutes witing for attorneys in the US to hammer out the paperwork required for a judicial override, that all might have been avoided.