The U.S. intelligence community's attempts to clarify its complaints to Congress that the nation's privacy protections hindered the NSA's spying on Iraqis suspected of kidnapping American soldiers actually not only demonstrates the intelligence community's bureaucratic slowness, but also the breadth of the powers temporarily handed to them by Congress this summer and the misleading rhetorical tricks it will play to get that power permanently.

Prior to the August update to the nation's spy laws, the NSA was barred from wiretapping landline phones and the internet inside the United States, unless they had a warrant from a secret, acquiescent spying court.

To force a telephone operator to wiretap a phone line inside the United States or turn over the contents of emails from a server in the United States, the NSA would have to show reasonable cause that the person was an agent of a foreign power or a terrorist. Outside the United States, the NSA was free to wiretap and eavesdrop on foreigners without limits, but had to hide information when one of the parties was believed to be a U.S. person (basically anyone legally inside the United States).

So in the case McConnell presented to Congress last week, the intelligence community used its ears to find Iraqis it believed to be involved in the kidnapping of American soldiers. Then they learned something from that surveillance that led them to believe that the supposed bad guys were using some communication service that passed inside the U.S.

Most likely this was an email address run by a U.S. provider. So to stay within the law, the NSA needed – under the old law – to get a warrant to start listening in.

More precisely, they needed an emergency authorization which could then be followed up on three days later with a proper court warrant.

The Protect America Act – passed in haste this summer by lawmakers frightened by phantoms of attacks on the Capitol – changed that. And the Administration wants to make that power permanent.

But the new law is not just about the NSA not having to prepare a court order to start surveillance on a Yahoo or Hotmail email account that it suspects is being used by a foreigner.

In fact, its about ordering Yahoo or Microsoft to open their email systems in perpetuity to the NSA so that it can start looking at the content of all emails sent from or to IP blocks it believes to be outside the country and begin monitoring all U.S.-based communications services on a meta-level, with an option to get at content when it thinks it should.

As Director of National Intelligence spokesman Ross Feinstein told TPM Muckraker, the intelligence community wants instant-on access:

Should we be spending time having to go through such a process to intercept foreign to foreign communications? *Even a few seconds is too long of a delay. *Why are we giving 4th Amendment protections to Iraqi Insurgents, located overseas, who have taken U.S. soldiers hostage? I wholeheartedly disagree that this was a bureaucratic process that delayed the Intelligence Community. The law was outdated, and led to this delay. The Protect America Act has alleviated those issues. (Emphasis added)

TPM Muckraker suggests, and rightfully so, that the timeline shows that the Justice Department was the bureaucratic morass where the application for emergency surveillance bogged down. The Justice Department says that's not the case, even though the orders merely had to show probable cause that the targets in Iraq were agents of a foreign power. They say the four hour delay was due to "novel" legal reasons.

Justice Department spokesman Dean Boyd also told TPM Muckraker that "Had [the DoJ lawyers] chose to ignore the requirements of FISA, I suspect they would be the subject of substantial criticism from you and others."

"If anything, this anecdote demonstrates the absurdity of extending [the Foreign Intelligence Surveillance Act's Fourth Amendment protections to Iraqi insurgents battling U.S. troops. It also demonstrates the lengths to which the Justice Department goes in order to comply with the legal requirements of FISA, which prior to the Protect America Act, applied to this particular surveillance.

But FISA has no Fourth Amendment protections. In fact, that's the point of FISA - exempting U.S. persons from the traditional Fourth Amendment protections that limit what the government can do in criminal wiretaps and searches.

If the government reasonably suspects that a U.S. person is a spy or a terrorist, it can get an order to bug your bedroom and copy your hard drive and tap your phone, without every having to tell you it it did so. (Although a district court in Oregon just found that exemption process violates the Fourth Amendment).

The government can do the same to foreigners outside the country without ever getting court approval. What FISA does do in effect, however, is give Fourth Amendment Us. communications facilities . The real question isn't whether Iraqi kidnappers get the protection of the Fourth Amendment. Clearly they do not.

The question is whether the communication infrastructure used by Americans to do business, talk to their loved ones, coordinate political rallies and express their political opinions should be turned into gigantic microphone that the nation's spy agencies can monitor constantly for odd patterns and listen in on anytime they wish, with no court supervision, with only a promise that they will only use it to catch real bad guys.

That's what the Administration and the nation's intelligence community wants, but they won't come out and say that. Instead they push for that power using misleading edge cases such as the Iraqi kidnapping story.