It's possible, no doubt, that in some cases the 72-hour "emergency" provision may work as intended. But, given what we know about the time it has historically taken to get FISA applications prepared and approved, it is obvious that there will be instances--unacceptable instances--where reliance on it will lead to a failed investigation. No wonder that President Bush was unwilling to put all of his eggs in that frail basket.
Here is a list of what a federal official must do in FISA's case for an emergency order:
Simple? Not exactly. FISA applications are detailed and require considerable time to prepare. Here are the requirements:
(a) Submission by Federal officer; approval of Attorney General; contents
Each application for an order approving electronic surveillance under this subchapter shall be made by a Federal officer in writing upon oath or affirmation to a judge having jurisdiction under section 1803 of this title. Each application shall require the approval of the Attorney General based upon his finding that it satisfies the criteria and requirements of such application as set forth in this subchapter. It shall include—
(1) the identity of the Federal officer making the application;
(2) the authority conferred on the Attorney General by the President of the United States and the approval of the Attorney General to make the application;
(3) the identity, if known, or a description of the target of the electronic surveillance;
(4) a statement of the facts and circumstances relied upon by the applicant to justify his belief that—
(A) the target of the electronic surveillance is a foreign power or an agent of a foreign power; and
(B) each of the facilities or places at which the electronic surveillance is directed is being used, or is about to be used, by a foreign power or an agent of a foreign power;
(5) a statement of the proposed minimization procedures;
(6) a detailed description of the nature of the information sought and the type of communications or activities to be subjected to the surveillance;
(7) a certification or certifications by the Assistant to the President for National Security Affairs or an executive branch official or officials designated by the President from among those executive officers employed in the area of national security or defense and appointed by the President with the advice and consent of the Senate—
(A) that the certifying official deems the information sought to be foreign intelligence information;
(B) that a significant purpose of the surveillance is to obtain foreign intelligence information;
(C) that such information cannot reasonably be obtained by normal investigative techniques;
(D) that designates the type of foreign intelligence information being sought according to the categories described in section 1801 (e) of this title; and
(E) including a statement of the basis for the certification that—
(i) the information sought is the type of foreign intelligence information designated; and
(ii) such information cannot reasonably be obtained by normal investigative techniques;
(8) a statement of the means by which the surveillance will be effected and a statement whether physical entry is required to effect the surveillance;
(9) a statement of the facts concerning all previous applications that have been made to any judge under this subchapter involving any of the persons, facilities, or places specified in the application, and the action taken on each previous application;
(10) a statement of the period of time for which the electronic surveillance is required to be maintained, and if the nature of the intelligence gathering is such that the approval of the use of electronic surveillance under this subchapter should not automatically terminate when the described type of information has first been obtained, a description of facts supporting the belief that additional information of the same type will be obtained thereafter; and
(11) whenever more than one electronic, mechanical or other surveillance device is to be used with respect to a particular proposed electronic surveillance, the coverage of the devices involved and what minimization procedures apply to information acquired by each device.
Remember, this is for an emergency order.
What most people don't understand is the sheer complexity of government rules, regulations and paperwork that get in the way of any possibility of a timely outcome--not only in this case, but in almost anything the government is involved in.
This was dramatically brought home to me as I was reading about the West Virginia mining tragedy yesterday. It is now known that the trapped miners were alive for at least 10 or more hours after the explosion that trapped them. Rescue workers did not get to them until 41 hours later. When asked to explain why it took so long, one official said that they were trying to follow the reams of state and federal government regulations about mine rescues which are in place to protect rescuers; and which prohibit going into the mine when it isn't completely safe. (I tried searching for that article today, but all the stories are now truncated and don't include this quote).
I'm sure these regulations on how to perform "safe" rescues are well-meaning and have the best interests of the rescuers at heart. They were probably a response to a mining disaster in the past where some aggressive rescuers--trying to reach trapped miners in a timely fashion--were themselves killed. They probably wanted to prevent such a thing from happening again.
Yet, one can't help but suspect that rescue work of necessity requires risk and that the risk will never be completely zero for those in the business. The closer it approaches zero as you follow all the rules and regulations, the higher the chances that the people who are to be rescued won't be reached in time.
I'm just saying that there is a trade-off. The reams of government regulations and paperwork in almost every area of life; every business; and every risk-taking venture certainly gives credence to the phrase "damned if you do, and damned if you don't."