Recent nemesis Glenn Greenwald has uncovered some interesting facts.
On June 20, 2002, Republican Senator DeWine of Ohio introduced legislation (S. 2659) that proposed substituting “reasonable suspicion” for “probable cause” as the standard for obtaining a FISA warrant. This was to pertain to cases involving non-United States persons only. Such persons would presumably account for an overwhelming majority of requests for a FISA warrant.
The context for this proposed legislation, which did not become law, is the speech delivered by General Hayden yesterday, in which he said
- The trigger is quicker and a bit softer, but the intrusion into privacy is also limited: only international calls and only those we have a reasonable basis to believe involve Al Qaeda or one of its affiliates. [emphasis added]
In my mind, “reasonable suspicion” and “reasonable basis to believe” are synonymous.
[UPDATE. The full text of Hayden’s speech is here]
I agree with Greenwald that the Administration should have welcomed the proposed change to FISA. But it didn’t. Here’s an excerpt from the statement submitted by James A. Baker, the Justice Department lawyer who oversees that DoJ’s Office of Intelligence Policy and Review, which is the group that “prepares and presents all applications for electronic surveillance and physical search under the Act to the Foreign Intelligence Surveillance Court (FISA Court or Court)”:
- 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. [emphasis added]
What were these issues, and why did they prevent the Administration from supporting the proposed legislation?
Use of reasonable standard evidence would taint it and derivative evidence undeer the exclusionary rule which requires probable cause for a search warrant.
Has anyone noticed that the Denbeste archive has been down for a few weeks?
It would be great if someone with inside knowledge could check it out. Here is my backup, of his site (17 meg):
http://tinyurl.com/abke4
Philosophically, the question must be asked. What standard are we to fight global terrorism? As a war or as a law enforcement issue. Clearly, Bush opted to perceive this as a war and naturally wanted the intrinsic flexibility in his role as commander-in-chief.
This seems consistent with the Administration resistance to legislation governing torture and the treatment of unlawful combatants. You can’t settle the legal question without resolving the philosophical one.
The question of whether this is a law enforcement or war issue has been resolved by both the President and Congress. If, as every administration since the inception of FISA has done, this administration believes that the Presidential authority is constitutionaly protected and superseeds congressional legislation, then the Dewine proposal was both unnecessary and counterproductive.
Steve MacDonald writes:
“If, as every administration since the inception of FISA has done, this administration believes that the Presidential authority is constitutionaly protected and superseeds congressional legislation, then the Dewine proposal was both unnecessary and counterproductive.”
Ah, but that’s where the problem lies.
Because in rejecting the Dewine proposal in 2002, the Department of Justice expressed doubts as to whether or not the proposed “relaxed standard”—the one that Bush supporters say is necessary and legal—violated the Fourth Amendment. They also thought that it was counterproductive. (You’ll have to read Glenn Greenwald’s post for the full details).
If the Administration’s view in 2002—when they were already conducting the controversial wiretaps, by the way—was that the “reasonable suspicion” standard was of questionable constitutionality, how much stock can we place in the legal argument articulated by General Hayden?
The Bush White House was against “reasonable suspicion” before it was for it.
More on the Administration’s Defense of NSA wiretaps
A few thoughts on this and the recent item in the WashingtonPost, and of course Arkin’s blog response. The issue of NSA wiretapping is not based on the act itself,
The Specter of coming Congressional grandstanding?
Here's a facsimile [pdf] of letter delivered by Arlen Specter to Attorney General Alberto Gonzales concerning the upcoming Congressional "wiretapping"/"domestic spying" show hearings. The complete text follows:
[...] AMERICAN FUTURE » Blog Archive » Giving Credit Where Credit Is Due (Updated) Giving Credit Where Credit Is Due (Updated) Recent nemesis Glenn Greenwald has uncovered some interesting facts. [...]
The argument seems to be that legislating a reduced standard and adopting it by executive order have different bases in terms of their constitutionality. I find that fairly troubling, because it implies a double standard as far as adherence to . The Fourth Amendment is interesting because it does not adopt the ‘Congress shall make no law…’ format, given that actual searches and seizures are inherently executive acts.
It’s important to preserve the principle of executive flexibility in times where it’s exigent and expedient, as long as there is adequate congressional oversight once those particular circumstances have passed, and the legislative capacity to limit and censure over-reaches. It’s hard to argue that the executive has not had the chance to seek congressional endorsement, nor that the GOP majority in Congress has not had the chance to exercise its oversight duties.
And yes, it is an extension of the ‘torture’ debate, to some extent. I follow the line that if, in extremis, the executive feels it necessary to do certain things that may be either illegal or unconstitutional, it should do those things then throw itself on the mercy of the other branches and the public at large. In this case, it did no such thing.
[...] In a January 24 post, I wondered why the Bush Administration wasn’t willing to endorse legislation proposed in June 2002 by Senator DeWine that proposed substituting “reasonable suspicion†for “probable cause†as the standard for obtaining a FISA warrant. [...]
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