Rep. Peter Hoekstra, R-Mich., the ranking member of the House Intelligence Committee, said, "The situation was because global communications move on wire, you can have a situation where information would pass on a wire through this country. So for us to specifically target the individuals that were involved in that kidnap, we had to go through a court order process. ... We are extending Fourth Amendment rights to a terrorist foreigner ... who's captured U.S. soldiers."
According to U.S. officials, the government began intercepting the insurgent communications and had to obtain an emergency FISA warrant when it was discovered that the insurgents were communicating on a circuit connected to the United States.
The emergency FISA warrant allows immediate surveillance with a phone call to either the attorney general, the deputy attorney general or the assistant attorney general of the National Security Division. It is after receiving a request for emergency wiretapping that the government has 72 hours to establish probable cause required by the court.
At the hearing, Assistant Attorney General for National Security Ken Wainstein said, "We have to find that there is probable cause that the person we want to surveil overseas is an agent of a foreign power. And if we don't find that, we're not allowed, under the statute, to go ahead and authorize emergency authority. And within 72 hours, we have to make that showing to the satisfaction of the FISA court. So it's a very important responsibility, a weighty responsibility, and it's nothing that we take lightly."
The FISA legislation passed by Congress in August, the Protect America Act, provided a temporary modification to the government's ability to intercept communications between foreign parties. McConnell said that the current legislation "allows us to do our overseas foreign intelligence mission."
Testifying about the impediment before the August legislation, Wainstein said, "There are a number of instances where we cannot make that showing, and we could therefore not do that surveillance."
Passed into law in 1978, the Foreign Intelligence Surveillance Act provides protections of U.S. persons from unauthorized government surveillance, an issue that has come under scrutiny after the NSA's eavesdropping program was revealed.