There have been some interesting developments lately as Bush engages in some trademark flailing over the issue of warrantless eavesdropping. Of particular interest to me was this post from blogger Glenn Greenwald (which came to my attention via a story in the LA Times): The Administration’s new FISA defense is factually false.
It describes how in 2002, in response to a proposal from Senator Michael DeWine (R-OH) that the standard for obtaining a FISA warrant be relaxed, with the “probable cause” requirement being replaced by a “reasonable suspicion” standard, at least for foreign targets, the Bush folks argued against the change, saying it was both unnecessary and (possibly) unconstitutional.
What we know now, of course, is that they were already secretly violating those FISA provisions, and had gone even farther, conducting unauthorized wiretaps of domestic communications. In Bush’s recent attempts to justify those actions, he’s been making the opposite argument: that the dramatically expanded executive power he’s exercising via the program is both necessary and legal.
But check out what James A. Baker, counsel for the Office of Intelligence Policy and Review (and no relation to perennial Bush-family fixer James A. Baker III, apparently; thank you, Wikipedia) said in the Administration’s official testimony on the proposed DeWine legislation back in 2002:
The Department of Justice has been studying Sen. DeWine’s proposed legislation. Because the proposed change raises both significant legal and practical issues, the Administration at this time is not prepared to support it.
The Department’s Office of Legal Counsel is analyzing relevant Supreme Court precedent to determine whether a “reasonable suspicion” standard for electronic surveillance and physical searches would, in the FISA context, pass constitutional muster. The issue is not clear cut, and the review process must be thorough because of what is at stake, namely, our ability to conduct investigations that are vital to protecting national security. If we err in our analysis and courts were ultimately to find a “reasonable suspicion” standard unconstitutional, we could potentially put at risk ongoing investigations and prosecutions.
The practical concern involves an assessment of whether the current “probable cause” standard has hamstrung our ability to use FISA surveillance to protect our nation. We have been aggressive in seeking FISA warrants and, thanks to Congress’s passage of the USA PATRIOT Act, we have been able to use our expanded FISA tools more effectively to combat terrorist activities. It may not be the case that the probable cause standard has caused any difficulties in our ability to seek the FISA warrants we require, and we will need to engage in a significant review to determine the effect a change in the standard would have on our ongoing operations. If the current standard has not posed an obstacle, then there may be little to gain from the lower standard and, as I previously stated, perhaps much to lose.
I assure [you] that we are moving expeditiously to answer these questions, which, of course, require input from agencies other than the Department of Justice that could be affected by the legislation.
In context, knowing that the administration had already begun violating the FISA requirements at that time, and that Baker, as the administration lawyer responsible for dealing with FISA, was almost certainly aware of that, his statements make for some entertaining ex-post-facto legal parsing.
Bottom-line lesson: When the Bush administration goes out of its way to retain legal wriggle room while not-quite asserting something to be true, it’s a safe bet that they’re actually being intentionally misleading.
Some good followup is available in these items from the Washington Post: White House dismissed ’02 surveillance proposal and Varied rationales muddle issue of NSA eavesdropping.