FISA's 72 Hours Of Free Wiretapping Myth.

A difficulty in understanding the National Security Agency's inernational communications eavesdropping controversy is the lack of clear and precise information on what is being done and the requirements of the law. One fact regularly raised as an argument against the NSA surveillance is the "72 hours of free wiretapping before a warrant need be sought" meme. Commenters regularly bring up this provision of FISA to suggest that the NSA can wiretap anybody willy nilly and then go to court 3 days later to get a warrant to justify the surveillance ex post facto.

It turns out the provision is not as generous to the NSA as the meme suggests. The San Diego Union Tribune published an interview on Sunday, February 5, 2006, of Air Force General Michael Hayden. (Here.) Hayden "is the highest ranking military intelligence officer in the U.S. military and the first to serve in the newly created post of principal deputy director of national intelligence. He was director of the National Security Agency from 1999 to 2005."

Here's what he has to say about the 72 hour provision:

"First, I need to get a statement of fact out. Under the FISA statute, NSA cannot put someone on coverage and go ahead and play for 72 hours while it gets a note saying it was OK. The attorney general is the one who approves emergency FISA coverage, and the attorney general's standard for approving FISA coverage is a body of evidence equal to that which he would present to the court."

-tdr