Photo Credit: Facebook
Staff Sgt. Oron Shaul, HY"D, killed in Operation Protective Edge.

And that is where the U.S. comes into the picture. Facebook is a U.S. company, and in order to require Facebook to turn over the IP address on its server, a court warrant has to be issued. This is the process on which U.S. prosecutors had begun working, after a request was forwarded from the U.S. Embassy in Israel to the Justice Department.

The Justice Department had to authorize the request, as it is the entity within the U.S. government which handles international terrorism matters. Hamas, of course, is designated by the U.S. government as a foreign terrorist organization. And the use of Facebook by a foreign terrorist organization to promulgate propaganda- the hacking into IDF Sgt. Shaul’s Facebook account – constituted “material support” to a designated terrorist organization.

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Upon receiving the request from Israel in Washington on July 21, the FBI immediately issued a “preservation letter” to Facebook, ordering them to preserve all data saved on the server pertaining to Shaul’s account, Emerson explained.

The FBI contacted the U.S. Attorney’s Office to begin the legal process to get a court order to serve Facebook for the IP information on Shaul’s account. Late afternoon on July 21, the U.S. Attorney’s office informed the FBI that it was just about ready to proceed to obtain the court order for Facebook to turn over the information.

US SHUTS DOWN EFFORT TO LOCATE SHAUL

Suddenly, and to the shock of the prosecutors working feverishly to obtain the information that possibly could reveal where Shaul (or his body) was being held, a shocking email arrived from the FBI. An email that spelled a death sentence for what many believed to be the best chance of finding Shaul and his kidnappers.

Thank you for your effort, input and assistance. I regret to inform you we have been denied approval to move forward with legal process.

We were told by our management we need a MLAT [Mutual Legal Assistance Treaty] in order to continue to assist our partner with the request in question.

The MLAT requires a standardized process to wind its way through legal and diplomatic protocols and usually take weeks to process. They are used, Emerson explained, for non-pressing legal matters in which the United States or another country is carrying out some legal process, such as a prosecution of a citizen in another country. They are not used in urgent, life-or-death or counter-terrorism scenarios, “especially with a close ally such as Israel,” Emerson was told.

The flat-footed termination of a race to discover vital information regarding terrorist activity and the life or dignity of the remains of a soldier of a close ally was nothing less than shocking, not only for the Israelis, but for the American team originally tasked with obtaining the information.

Three days after the stand down email was sent, the IDF concluded that Oron Shaul was dead. His body has never been recovered. Hamas is interested in using whatever parts of Shaul’s body they claim to have to swap for terrorist prisoners held by Israel.

According to Emerson’s investigation, those involved in the legal procedures in the U.S. believe the stop order was given by the attorney general’s office.

That stand down order was a direct rebuff to a request made by Israel, what at least most members of congress believe to be one of America’s closest allies. There is a paper trail which will reveal who made the decision to shut down the effort to assist Israel in a desperate situation.

Congress should demand to know who gave the order. The U.S. Senate Judiciary committee is the address from which such an inquiry should be made.

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Lori Lowenthal Marcus is a contributor to the JewishPress.com. A graduate of Harvard Law School, she previously practiced First Amendment law and taught in Philadelphia-area graduate and law schools. You can reach her by email: Lori@JewishPressOnline.com