Must reading today is Andy McCarthy at NRO on recklessness at the FISA court, the secret panel established under the Foreign Intelligence Surveillance Act of 1978 to place electronic surveillance in matters of espionage and counterterrorism under judicial review.

Earlier this year, a judge who sits on the FISA court took the unprecedented step of ruling that our intelligence community “needs the permission of a federal judge before it can conduct electronic surveillance on non-Americans outside the United States who are communicating with other non-Americans outside the United States.”

In other words, in the middle of a war in which the interception of enemy communications is one of our most vital tools, an unelected judge, whose name remains secret, is tying our counterterrorism effort abroad in knots.

Is the judge’s astonishing ruling a remotely plausible interpretation of FISA? McCarthy argues persuasively that it is not. But ultimately, we cannot say. The ruling itself, like the judge’s identity, remains secret.

What is really at stake here? Sometimes it might be the ability to move quickly in finding an al Qaeda operative. Sometimes it might cost an American his life. A story in yesterday’s New York Post, “‘Wire’ Law Failed Lost GI,” offers an example of the trouble the FISA court has placed us in:

U.S. intelligence officials got mired for nearly 10 hours seeking approval to use wiretaps against al Qaeda terrorists suspected of kidnapping Queens soldier Alex Jimenez in Iraq earlier this year. . .

This week, Congress plans to vote on a bill that leaves in place the legal hurdles in the Foreign Intelligence Surveillance Act—problems that were highlighted during the May search for a group of kidnapped U.S. soldiers.

In the early hours of May 12, seven U.S. soldiers—including Spc. Jimenez—were on lookout near a patrol base in the al Qaeda-controlled area of Iraq called the “Triangle of Death.”

Sometime before dawn, heavily armed al Qaeda gunmen quietly cut through the tangles of concertina wire surrounding the outpost of two Humvees and made a massive and coordinated surprise attack.

Four of the soldiers were killed on the spot and three others were taken hostage.

A search to rescue the men was quickly launched. But it soon ground to a halt as lawyers—obeying strict U.S. laws about surveillance—cobbled together the legal grounds for wiretapping the suspected kidnappers.

Starting at 10 a.m. on May 15, according to a timeline provided to Congress by the director of national intelligence, lawyers for the National Security Agency met and determined that special approval from the attorney general would be required first.

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.

Is this any way to wage war? Where is the outrage?

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