Retroactive telcom immunity bill shut down

[tehhu1k]

http://afp.google.com/article/ALeqM5jA9po-tlOefX8EJkoJGu8hIwzVmA

Are we more vulnerable now? Discuss...

[Johan]

You hear that knocking at your door? No? Listen for it...

they're coming for you! They're listening! :D

[Beelzebud]

I prefer to keep the 4th amendment intact.

Those who would give up Essential Liberty to purchase a little Temporary Safety, deserve neither Liberty nor Safety. -Benjamin Franklin

[Karmakin]

The House Republicans wouldn't even consider a bill without the retroactive telcom immunity. That kinda tells you what this is all about.

[Shadowstorm]

This is essentially a get out of jail free card for the telecoms.

[Beelzebud]

Look at which senators the telecoms give money to, and it's easy to see who voted for what, and why.

[Karmakin]

It's actually a get out of jail free card for the administration. The concern is that civil trials (and this of course would be civil cases and not criminal, as the Western criminal system is woefully inadequate in dealing with corporate crime) would uncover that this administration did illegal things, and that would land them in jail.

For the telcos it's merely a get out of court free card.

[Karmakin]

By the way, the reason this whole thing is even an issue is because of the publics ignorance in recognizing what it actually means to fight terrorism. The fact that the Democrats can be and are branded as "soft on terror" any time they don't fully support what this administration is doing on this topic opens the door to crazy town. By and large, it's what the public seems to want.

Elections are the process in which we determine the governments that we deserve. I think this whole telecom immunity thing is a good proof of that.

[Oxonian]

Let me get this straight. The Bush Administration went to the telecoms companies and said, "We need you to help us place wiretaps on a variety of suspected terrorists." When the telecoms lawyers questioned whether they were allowed to do so without a court order, the Administration told them: "Under FISA, you are both entitled and required to give us the assistance we request."

Now, the legal climate has changed, and the telecoms carriers fear that the ACLU will sue them for money damages for violating civil rights. Even if you assume the Bush Administration's interpretation of FISA was wrong -- and I think there was room to argue about how courts would going to rule on that -- should the telecoms carriers simply have told the Bush Administration to take a hike? After all, both the evidence the Administration used and FISA Court's opinions are classified. The telecoms companies couldn't possibly know if the Administration's request was legal. Exposing them to liability at this late date will likely mean private entities of all stripes will be hesitant to comply with even lawful requests by government agencies. It's both unjust and dangerous to allow the telecoms carriers to be sued for actions taken when the law was in a state of flux.

[torrefaction]

Oxonian nailed this, as usual.

[Slack3r78]

After all, both the evidence the Administration used and FISA Court's opinions are classified. The telecoms companies couldn't possibly know if the Administration's request was legal.
Which, in a lot of ways, highlights what's wrong with the whole program, to me. You're talking about compelling companies to comply with orders where there is no way of knowing the legal validity of the order one way or another.

[Beelzebud]

Let me get this straight. The Bush Administration went to the telecoms companies and said, "We need you to help us place wiretaps on a variety of suspected terrorists." When the telecoms lawyers questioned whether they were allowed to do so without a court order, the Administration told them: "Under FISA, you are both entitled and required to give us the assistance we request."

Now, the legal climate has changed, and the telecoms carriers fear that the ACLU will sue them for money damages for violating civil rights. Even if you assume the Bush Administration's interpretation of FISA was wrong -- and I think there was room to argue about how courts would going to rule on that -- should the telecoms carriers simply have told the Bush Administration to take a hike? After all, both the evidence the Administration used and FISA Court's opinions are classified. The telecoms companies couldn't possibly know if the Administration's request was legal. Exposing them to liability at this late date will likely mean private entities of all stripes will be hesitant to comply with even lawful requests by government agencies. It's both unjust and dangerous to allow the telecoms carriers to be sued for actions taken when the law was in a state of flux.

We know it probably wasn't legal because the Bush administration never went back to the FISA court for a retroactive warrant, like they're supposed to. Also at least 1 telecom, Quest, told the administration to come back with a warrant, so if they could determine the legality, there is no excuse the rest couldn't.

The argument that this restricts cooperation from these companies in the future is absurd because the remedy for that is a warrant. Thats why we have the FISA court. You give a company a legal warrant for information, and they don't have a choice to help you.

[Karmakin]

Yeah. I do have to say that Oxonian, is right on this as well. The problem is that what was done IS illegal, it's just that the liability needs to go somewhere. Right back to the administration seems like a good place for it to be. Which is why impeachment really needs to be on the table for this sort of thing.

Edit:But really, this is why there should be no tapping without a warrant, period. Any sort of gray area, it seems to lead to that gray area being expanded and expanded. Qwest really had the right idea..come back with a warrant and we'll do it. If you can't show a warrant for...whatever reason, you probably don't have enough evidence to deserve a tap.

[Heretic Machine]

Let me get this straight. The Bush Administration went to the telecoms companies and said, "We need you to help us place wiretaps on a variety of suspected terrorists." When the telecoms lawyers questioned whether they were allowed to do so without a court order, the Administration told them: "Under FISA, you are both entitled and required to give us the assistance we request."

Now, the legal climate has changed, and the telecoms carriers fear that the ACLU will sue them for money damages for violating civil rights. Even if you assume the Bush Administration's interpretation of FISA was wrong -- and I think there was room to argue about how courts would going to rule on that -- should the telecoms carriers simply have told the Bush Administration to take a hike? After all, both the evidence the Administration used and FISA Court's opinions are classified. The telecoms companies couldn't possibly know if the Administration's request was legal. Exposing them to liability at this late date will likely mean private entities of all stripes will be hesitant to comply with even lawful requests by government agencies. It's both unjust and dangerous to allow the telecoms carriers to be sued for actions taken when the law was in a state of flux.

The telecom's first obligation is to their customers, at the very least they should have seriously fought this. Instead, they buckled and let the government invade our privacy.

[Beelzebud]

Yeah. I do have to say that Oxonian, is right on this as well. The problem is that what was done IS illegal, it's just that the liability needs to go somewhere. Right back to the administration seems like a good place for it to be. Which is why impeachment really needs to be on the table for this sort of thing.

Immunity for the telecoms isn't just about protecting the telecoms. Why do you think they don't want those companies in court? Because in the end, it's the administration that will pay for the law breaking, not the companies. This is all about keeping the Bush administration out of trouble.

[Ancalagon]

should the telecoms carriers simply have told the Bush Administration to take a hike?

Yes. What are they going to do? Sue them? Let the public know that the telecoms didnt bow down to the government? That will get the government lots of popularity points.

the sooner we see the back of Bush and his "administration" the better.

[Karmakin]

Immunity for the telecoms isn't just about protecting the telecoms. Why do you think they don't want those companies in court? Because in the end, it's the administration that will pay for the law breaking, not the companies. This is all about keeping the Bush administration out of trouble.

Indeed, which is why retroactive immunity needs to come in a bill bundled with the beginnings of a full investigation into the administrations role, with it made clear that any breaking of the law will be punished to the full extent of the law.

[Oxonian]

Which, in a lot of ways, highlights what's wrong with the whole program, to me. You're talking about compelling companies to comply with orders where there is no way of knowing the legal validity of the order one way or another.
Eh, you're going to run into that problem no matter what you do. Cops don't generally hand over their probable cause affidavits to telecoms companies when requesting even run-of-the-mill wiretaps, and even if they did, telecoms companies don't generally make a major effort to hire legal counsel with extensive experience in search-and-seizure law. Heck, the Supreme Court has granted even cops a limited form of immunity if they conduct a search pursuant to an invalid warrant if they reasonably and in good faith believed the warrant was valid. If we can't expect cops to know whether their searches are legal, how can we expect telecoms companies to do so?

EDIT: Actually, I substantially understated this point. It's not just that cops have sovereign immunity when enforcing an invalid warrant if they had a good-faith belief the warrant was valid. The evidence obtained during that illegal search will even be admissible. There is literally no liability or consequence for good-faith reliance on an invalid warrant. Likewise, cops have sovereign immunity for good-faith reliance on reasonable (though wrong) interpretations of their authority.

The argument that this restricts cooperation from these companies in the future is absurd because the remedy for that is a warrant. Thats why we have the FISA court. You give a company a legal warrant for information, and they don't have a choice to help you.
What about legal warrantless searches? Plus, you're ignoring the fact that just because a cop has a warrant, doesn't mean the search is legal. Even leaving aside questions like whether a particular search falls within the ambit of a particular warrant, there's such a thing as invalid warrants.

[Slack3r78]

Eh, you're going to run into that problem no matter what you do. Cops don't generally hand over their probable cause affidavits to telecoms companies when requesting even run-of-the-mill wiretaps, and even if they did, telecoms companies don't generally make a major effort to hire legal counsel with extensive experience in search-and-seizure law. Heck, the Supreme Court has granted even cops a limited form of immunity if they conduct a search pursuant to an invalid warrant if they reasonably and in good faith believed the warrant was valid. If we can't expect cops to know whether their searches are legal, how can we expect telecoms companies to do so?
The difference, to me, is between having an invalid warrant in hand versus having an executive officer say something to the effect of "you have to let me do this because I say so and you might get a warrant for it later."

I'm not sure I agree with holding telecoms liable for the reasons you pointed out, but the nature of the whole program does make me somewhat uncomfortable to begin with.

[Devilturnip]

What about legal warrantless searches? Plus, you're ignoring the fact that just because a cop has a warrant, doesn't mean the search is legal. Even leaving aside questions like whether a particular search falls within the ambit of a particular warrant, there's such a thing as invalid warrants.

The telecoms broke the law, and they should be punished. If the law is half as muddy as you're suggesting, it should be changed. The telecoms spend enough on lobbyists that if it needs to change, it will.

The issue looks pretty cut and dry to me. Does the government have a warrant? If not, tell them to come back with one. If the warrant is illegal, the blame falls on the warrant issuer, not the company that complies with said warrant.

[Citizen Philip]

Let me get this straight. The Bush Administration went to the telecoms companies and said, "We need you to help us place wiretaps on a variety of suspected terrorists." When the telecoms lawyers questioned whether they were allowed to do so without a court order, the Administration told them: "Under FISA, you are both entitled and required to give us the assistance we request."

Now, the legal climate has changed, and the telecoms carriers fear that the ACLU will sue them for money damages for violating civil rights. Even if you assume the Bush Administration's interpretation of FISA was wrong -- and I think there was room to argue about how courts would going to rule on that -- should the telecoms carriers simply have told the Bush Administration to take a hike? After all, both the evidence the Administration used and FISA Court's opinions are classified. The telecoms companies couldn't possibly know if the Administration's request was legal. Exposing them to liability at this late date will likely mean private entities of all stripes will be hesitant to comply with even lawful requests by government agencies. It's both unjust and dangerous to allow the telecoms carriers to be sued for actions taken when the law was in a state of flux.

Wasn't there a provider on the west coast who refused to help on the grounds it wasn't legal? Don't recall their name.

Ah yes, Qwest.

http://www.usatoday.com/news/washington/2006-05-10-nsa_x.htm

Among the big telecommunications companies, only Qwest has refused to help the NSA, the sources said. According to multiple sources, Qwest declined to participate because it was uneasy about the legal implications of handing over customer information to the government without warrants.

And this little bit here: http://en.wikipedia.org/wiki/Qwest#NSA_spying

[Beelzebud]

What about legal warrantless searches? Plus, you're ignoring the fact that just because a cop has a warrant, doesn't mean the search is legal. Even leaving aside questions like whether a particular search falls within the ambit of a particular warrant, there's such a thing as invalid warrants.

The FISA court allows for warrantless searching, providing the government obtain a retroactive warrant after the fact. This is the main reason for the FISA court. This issue isn't about a cop searching a home. It's about massive surveillance of private communications. The FISA court was set up directly to deal with how we handle intelligence gathering when it pertains to national security, and to make sure the constitutional rights of U.S. citizens were upheld. It was a direct response to the Nixon administration's spying on political opponents that got the court set up. If the government needs to search a terrorist target, they can do that, and then go back to FISA afterwards to get a warrant. If their targets are legit, then why do they want to duck out of judicial oversight?

The administration is playing a very Nixonian game where they think they can change the laws by declaration. They failed to use the FISA court, and now they're attempting to, yet again, avoid responsibility.

[Oxonian]

If the law is half as muddy as you're suggesting, it should be changed.
Like, say, Congress should pass a law modifying FISA and extending retroactive immunity to telecoms companies?

The issue looks pretty cut and dry to me. Does the government have a warrant? If not, tell them to come back with one.
This is why you are not a judge. You propose a radical revision of American law.

Let's go over some of the exceptions to the Fourth Amendment's warrant requirement, shall we?

Consent
Exigent circumstances
Border searches
Plain view
Terry searches
Open fields
Search incident to lawful arrest

This is a partial list. Exigent circumstances and border searches are both arguably applicable to the Bush Administration wiretaps.

Wasn't there a provider on the west coast who refused to help on the grounds it wasn't legal?
Yes, and this is exactly my point. Qwest didn't have special access to classified information or the ability to predict the future. Instead, Qwest's lawyers realized that Qwest was unlikely to suffer any consequences by refusing to comply with the Administration's request, but they might face legal liability if they complied. So they told their bosses it was better to be safe than sorry, and refused to allow the Administration to emplace wiretaps.

Do we really want to vindicate that decision? We'll be encouraging telecoms companies -- indeed, all private entities -- to refuse to help the government whenever there's the slightest question about whether the government's request is legal. Erring on the side of caution sounds like a good idea until one day a private entity refuses a government request that is close but ultimately legal, and a terrible consequence results.

You see this problem a lot in free-speech law, where's it's known as a "chilling effect." If you impose legal liability for one type of speech, you aren't just discouraging people from engaging in that type of speech. People don't understand the law very well, and they're afraid of being sued, so they wind up refraining from all sorts of speech, even stuff an experienced lawyer could tell them was clearly permissible.

What's kind of interesting about the wiretap situation is that, as I understand it, current federal law would already protect the telecoms companies. There's already a good-faith safe harbor for complying with apparently lawful government orders. But the telecoms companies will have to spend millions to vindicate that right in court, and there's still a chance they could lose (judges sometimes make crazy rulings).

[Slack3r78]

Do we really want to vindicate that decision? We'll be encouraging telecoms companies -- indeed, all private entities -- to refuse to help the government whenever there's the slightest question about whether the government's request is legal. Erring on the side of caution sounds like a good idea until one day a private entity refuses a government request that is close but ultimately legal, and a terrible consequence results.
I'm not sure that I agree with describing the question of legality in this case as being 'slight'. As a rule, a wiretap does require a warrant to be legal, right? Which means these cases would be against the general case, and I don't really think it's that odd for a telecom to question the legality of an order that could almost certainly be described as extraordinary.

[Trazzlo the Magnificant]

The biggest problem is that all "big law" must exist behind closed doors, without judicial oversight, no responsibility by anyone in power nor any third parties they include in their "pursuit of justice".

Furthermore, it so is full of holes it's not funny. It's a massive database being built as fast as data comes in, which means there can easily be mistakes. It's not possible to actually police this much data without a lot of internet cops who watch the data, but people aren't perfect and the more of them included the less secure the system gets.

Where is the justice of recovery from any one of these types of issues? How do you even get the situation addressed, if it is labeled too top secret to tell you why you are being victimized? Who will repay you?

It's all about hiding justice from the people of the land, although they are the people being specifically targeted by the laws (or lack of laws, or lack of teeth in the laws) even though the laws themselves are extraordinarily far reaching.

And, good luck shutting that thinking down once you open the door even a little bit. The next time they need law like this, you can be sure they won't repeat the mistakes they made this time. They will be relentless in making sure that "top secret" remains top secret.

You either fight now, or take on all responsibilities today, and tomorrow.

[Citizen Philip]

Yes, and this is exactly my point. Qwest didn't have special access to classified information or the ability to predict the future. Instead, Qwest's lawyers realized that Qwest was unlikely to suffer any consequences by refusing to comply with the Administration's request, but they might face legal liability if they complied. So they told their bosses it was better to be safe than sorry, and refused to allow the Administration to emplace wiretaps.

Isn't that a two way street? Do whatever the government asks, including turning over all of your customer data, because the government can invent legislation in the future to protect you? I don't think thats a nice way to be either.

If any entity in a country can choose or not choose to do something legally, wouldn't it be the government?

[Johan]

The telecoms companies couldn't possibly know if the Administration's request was legal.

You nailed it, as usual.

They should NOT have willingly turned over the information they provided in the absence of a court order and a clear legal mandate.

Well done!

[Beelzebud]

Again, the issue is twisted. When you present a company with a warrant, they have no choice but to comply. That is the whole point. Qwest told the government no because the government was wanting a warrantless wiretap. Judical oversight isn't a bad thing.

If the government can't find a good reason for a FISA judge to give them a warrant, then they're probably stepping out of their bounds, because the FISA court approves over 95% of the warrant requests they get. Give them a good reason, and you'll get a warrant.

[Craggle]

I'm not sure that I agree with describing the question of legality in this case as being 'slight'. As a rule, a wiretap does require a warrant to be legal, right? Which means these cases would be against the general case, and I don't really think it's that odd for a telecom to question the legality of an order that could almost certainly be described as extraordinary.

The Communications Act of 1934 mandates that these companies protect the confidentiality of their customers information. They are required to provide this information and assistance to authorized law enforcement if either of the following are provided (http://www4.law.cornell.edu/uscode/html/uscode18/usc_sec_18_00002511----000-.html):

(A) a court order directing such assistance signed by the authorizing judge, or
(B) a certification in writing by a person specified in section 2518 (7) of this title or the Attorney General of the United States that no warrant or court order is required by law, that all statutory requirements have been met, and that the specified assistance is required


We know that the administration started bypassing (http://www.upi.com/NewsTrack/Top_News/2005/12/26/bush_was_denied_wiretaps_bypassed_them/7310/) the FISA courts, effectively ruling out option (A) so we are left with option (B). If the teleco's have this certification then prosecution would not be an issue for them. If they don't then they should have denied the government's request.

The current FISA law was amended in 2001 and applauded by the President, but now he has declared that if there is no retroactive immunity included it will endanger the U.S. He is so concerned about this danger that he would veto a 30-day extension to the current law while Congress hammers out the two bills in committee.

[Trazzlo the Magnificant]

So what happens if Bush falls off his tricycle and dies? Doesn't Cheney become President? Is it ok with you if Cheney controls all this information? Are his ethics up to that responsibility?

If so, then you realize that an election is coming up and who wins that may very well be your single least favorite person. And, his/her Vice President is even worse. How do you feel about them controlling this information, and deciding when top secret extensions are required?

You never know if the next president lives through his term, or if Vice President Jack Thompson becomes President. And, he is convinced that gamers are simply terrorists in training. Murders yet undiscovered.

The problem is when law lives behind closed doors, ethics of the application of those laws becomes a random factor. The person who is in charge becomes the ethical system that directs and focuses that law, and decides who in punished and who is rewarded for compliance. Justice becomes a very distant thing for the average person.

These sorts of hidden, top secret laws are excellent tools for the Mafia. Certainly, you can see that if they were in power they would not say "ewww, get rid of this stinky law". Or, they might build on it.

It becomes a crap shoot at every election. And every party knows that. Even the one currently in power. They might not be as happy with the ethics of the next one. Certainly, Nixon would have used this sort of thing instead of that messy break & entry stuff. Would the republicans have used the Watergate information against the democrats? Ever? Under any circumstances? And are you as sure of the other party when they come in power?

And, if the system can read all of internets data then could it not also selectively write back? How sure are you of continued fairness of future elections?

[Oxonian]

Qwest told the government no because the government was wanting a warrantless wiretap. Judical oversight isn't a bad thing.
I'm not suggesting judicial oversight is a bad thing. But as you already noted, there are often circumstances under which a warrant is not required. Imposing liability on the telcos will effectively render the warrant exceptions and the retroactive warrant rule in FISA a dead letter.

If the teleco's have this certification then prosecution would not be an issue for them.
Ummm... don't people sometimes get sued or prosecuted even if they are innocent?

[SuicideKing]

I think they should get the immunity, and I agreed with the principle of FISA. The whole point of not needing a warrant is that when dealing with something where the stakes are as high as terrorism, getting a warrant can take far too long, meaning that your time window to get in on a call you have every reason to suspect is dealing with plotting terrorism, closes before you get the warrant. If we could streamline the process of getting the warrant, the point would be moot, but no one wants to touch dismantling large sections of bureacracy.

So just my two cents, I also think there are more than enough watchdogs who cry foul at even non-issues, that should a veritable abuse come to light, everyone would be all over it, and there would be repercussions. I obviously have differences with several people on this board as to what actions the government has taken in the past are right or wrong as well, so this isn't something we're going to agree on or could really debate.
So one of you saying look at this, this, or this past incident where such and such happened, and the administration got away with it, is probably unlikely to convince me otherwise.

I, for example think the whole issue of Valerie Plame and Wilson was far overblown, Libby should be pardonned, and Wilson made to face the consequences for his lies, and Plame get at least a slap on the hand for conflict of interest in getting Wilson the job.

I also think that it would be a good idea to look into charging the reporter who leaked the US government's working with various banks to track terrorist funds with treason.

So yeah. Cue the howls of outrage, just wanted to get my input in.

[Citizen Philip]

I'm not suggesting judicial oversight is a bad thing. But as you already noted, there are often circumstances under which a warrant is not required. Imposing liability on the telcos will effectively render the warrant exceptions and the retroactive warrant rule in FISA a dead letter.

I agree that in some circumstances a warrant is not required, however in this case acquiring the private information of millions upon millions of customers is not one of them. Essentially the government says "open sesame" which when spoken aloud sounds exactly like 'terrorist' and all the companies give them the keys, the books, the ledgers, the papers and walks away.

Giving a government, any government a magical password to open any door at any time is going to be abused.

[Beelzebud]

I think they should get the immunity, and I agreed with the principle of FISA. The whole point of not needing a warrant is that when dealing with something where the stakes are as high as terrorism, getting a warrant can take far too long, meaning that your time window to get in on a call you have every reason to suspect is dealing with plotting terrorism, closes before you get the warrant. If we could streamline the process of getting the warrant, the point would be moot, but no one wants to touch dismantling large sections of bureacracy.


But that is the whole point... FISA grants them the power to search first, in national security matters, and then get a warrant later. There is no reason to side-step FISA unless you don't want any oversight. The administration is just wanting us to trust them, and frankly, up until now they've given us no reason to.

[SuicideKing]

But that is the whole point... FISA grants them the power to search first, in national security matters, and then get a warrant later. There is no reason to side-step FISA unless you don't want any oversight. The administration is just wanting us to trust them, and frankly, up until now they've given us no reason to.

Because of the average time involved (several weeks) in applying and receiving a warrant. My point is, if we could streamline the obtention of the warrant it wouldn't have to be done after the fact, but as it is, it is severely impractical given the nature of critical information gathering, thus FISA.

[Johan]

If the government can't find a good reason for a FISA judge to give them a warrant, then they're probably stepping out of their bounds, because the FISA court approves over 95% of the warrant requests they get. Give them a good reason, and you'll get a warrant.

But that unapproved 5%? The terrorists win.

Having to go before a court? The terrorists win.

Needing a warrant? The terrorists win.

Retroactive immunity for handing over the keys to the kingdom without a warrant? Priceless...

[Oxonian]

Because of the average time involved (several weeks) in applying and receiving a warrant.
While I agree that applying for and receiving a warrant can often take too long, I'm not sure where you get the "several weeks" figure from. I was under the impression that most run-of-the-mill warrants usually take between a few hours and a few days. Ex parte proceedings are fun like that.

[SuicideKing]

While I agree that applying for and receiving a warrant can often take too long, I'm not sure where you get the "several weeks" figure from. I was under the impression that most run-of-the-mill warrants usually take between a few hours and a few days. Ex parte proceedings are fun like that.

To be honest I'm trying to find the exact reference now, so I suppose the several week length isn't necessarily the average. The main problem with it is that the DoJ can request delays indefinitely, and the process required before actually requesting a warrant. Whether it was the 9 hour delay cited here. (http://www.foxnews.com/story/0,2933,301856,00.html) Or FBI headquarters not (http://www.9-11commission.gov/hearings/hearing6/witness_schulhofer.htm) wanting to go through the process to search Moussaoui's computer given the perceived complexity of the process.

Even if you were to try for the 72 hour emergency version of the warrant pre-revisions, the requirements are as follows:

(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.

Note that Sec. 1805(f), notwithstanding that it contemplates an "emergency," provides no relief from the full filing requirement of Sec. 1804. The government has 72 hours from the time when a telephone is found, and the Attorney General gives the order to begin surveillance, until a FISA judge actually signs the order based on the government's application.

Even under a 72-hour "emergency" application, the government must certify that "factual basis for issuance of an order under this subchapter to approve such surveillance exists." as per Sec. 1805(a)(3)(A):

on the basis of the facts submitted by the applicant there is probable cause to believe that— (A) the target of the electronic surveillance is a foreign power or an agent of a foreign power

I'm hardly an expert, but from my understanding a particular phone calling a terrorist's (or suspected terrorist's) phone doesn'y necessarily imply that the owner of that phone is the agent of a foreign power, at least for the probable cause statute.

Then there's this (http://www.nationalreview.com/york/york200512191334.asp): (I'll be the first to admit that the NR trends conservative but I don't particular think the author made this up)

People familiar with the process say the problem is not so much with the court itself as with the process required to bring a case before the court. "It takes days, sometimes weeks, to get the application for FISA together," says one source. "It's not so much that the court doesn't grant them quickly, it's that it takes a long time to get to the court. Even after the Patriot Act, it's still a very cumbersome process. It is not built for speed, it is not built to be efficient. It is built with an eye to keeping [investigators] in check." And even though the attorney general has the authority in some cases to undertake surveillance immediately, and then seek an emergency warrant, that process is just as cumbersome as the normal way of doing things.

Lawmakers of both parties recognized the problem in the months after the September 11 terrorist attacks. They pointed to the case of Coleen Rowley, the FBI agent who ran up against a number roadblocks in her effort to secure a FISA warrant in the case of Zacarias Moussaoui, the al Qaeda operative who had taken flight training in preparation for the hijackings. Investigators wanted to study the contents of Moussaoui's laptop computer, but the FBI bureaucracy involved in applying for a FISA warrant was stifling, and there were real questions about whether investigators could meet the FISA court's probable-cause standard for granting a warrant. FBI agents became so frustrated that they considered flying Moussaoui to France, where his computer could be examined. But then the attacks came, and it was too late.