A View From The Handbasket

Tuesday, January 24, 2006
Bush Justice Department rejected relaxed FISA rules
Posted by neros_fiddle at 3:12 PM
This is getting better and better. If you haven't yet, go read the post below, in which Gen. Hayden, former NSA chief, says the reason NSA's domestic spying program was extra-super-Constitutional is because the searches and seizures weren't "unreasonable," regardless of whether or not the case rose to the level of probable cause.

OK, now go read this.

For those who want the condensed version: In 2002, Mike DeWine (R-Ohio) introduced Senate Bill 2659, which would:

amend the Foreign Intelligence Surveillance Act of 1978 to modify the standard of proof for issuance of orders regarding non-United States persons from probable cause to reasonable suspicion...

which is exactly (except for the "non-United States persons" part) what this whole program is about, according to Hayden! Here's a bill introduced to give Bush at least some of the powers he was seeking (and would later assume without benefit of legislation).

So what happened to this amendment?

The Justice Department was asked its opinion on the matter. They came back and said, in paraphrase (see the above link for exact quotes), "No, the Patriot Act is dandy. Thanks for passing it. We don't need any additional powers in this area. In fact, 'probable cause' is sufficient for our purposes, and we don't think going to 'reasonable suspicion' would be worth the time it would take for the legal analysis. Furthermore, we're not at all sure a 'reasonable suspicion' standard would stand up in court as being constitutional. So we don't support this legislation."

The amendment didn't pass.

As noted in the above link,

Two other points to note about this failed DeWine Amendment that are extremely important:

(1) Congress refused to enact the DeWine Amendment and thus refused to lower the FISA standard from "probable cause" to "reasonable suspicion." It is the height of absurdity for the Administration to now suggest that Congress actually approved of this change and gave it authorization to do just that -- when Congress obviously had no idea it was being done and refused to pass that change into law when it had the chance.

(2) DeWine's amendment would have lowered the standard for obtaining a FISA warrant only for non-U.S. persons -- whereas for "U.S. persons," the standard would have continued to be "probable cause." And, DeWine's amendment would not have eliminated judicial oversight, since the Administration still would have needed approval of the FISA court for these warrants.

That means that, in 2 different respects, DeWine's FISA amendment was much, much less draconian than what the Administration was already secretly doing (i.e., lowering the evidentiary standard but (i) eliminating judicial oversight, and (ii) applying these changes not just to non-U.S. persons but also to U.S. persons). Thus, Congress refused to approve -- and the DoJ even refused to endorse -- a program much less extreme and draconian than the Administration's secret FISA bypass program.

So, let's review. The Bush administration said in 2002, when the secret wiretaps had already begun, that a bill authorizing a less extreme version of those wiretaps was unnecessary and quite possibly unconstitutional. Now, they're saying that the more extreme version they actually implemented without Congressional approval (though they insist at least some of the Congressmen they "briefed" were OK with it) is both "vital" and 100% constitutional.

At this point, Bush could tell me water was wet, and I'd send a sample to a lab.

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