The Administration's Legal Defense Implodes

Glenn Greenwald has a HUGE scoop in the NSA domestic spying controversy. Yesterday General Hayden explained in some detail how the procedures used in the NSA spying program differ from the procedures required by FISA. The primary difference, according to Hayden, is that the secret program requires only a showing of "reasonable basis to believe," which is a "softer" trigger than the "probable cause" requirement of FISA. Hayden claimed that this softer trigger allows the President to track suspicious calls "more comprehensively and more efficiently."

As Kevin Drum and number of others pointed out, if this lower standard is necessary, it's hard to see why Congress would not have amended FISA accordingly. This is where Glenn picks up the story. It turns out that Congress had an opportunity to consider just such an amendment in 2002--AFTER the secret spying program began. Senator Mike DeWine of Ohio introduced a bill that would have changed the required showing under FISA from "probable cause" to "reasonable suspicion." But that's not the best part. The best part is that the Bush administration opposed the bill, citing the lack of need for such an amendment as well as its dubious constitutionality! In fact, James A. Baker, the Justice Department attorney who oversees the DoJ's application process for FISA warrants, was the one who drafted the official statement summing up the administration's position. Here's a key passage:

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.

Here's Glenn:

So as of June, 2002 -- many months after the
FISA bypass program was ordered -- the DoJ
official who was responsible for overseeing the
FISA warrant program was not aware (at least
when he submitted this Statement) of any
difficulties in obtaining warrants under the
FISA "probable cause" standard, and for that
reason, the Administration would not even
support DeWine's amendment. If - as the
Administration is now claiming - they had such
significant difficulties obtaining the warrants
they wanted for eavesdropping that they had to
go outside of FISA, surely Baker - who was in
charge of obtaining those warrants - would have
been aware of them. And, if the Administration
was really having the problems under FISA,
they would have supported DeWine's
Amendment. But they didn't.

Regarding the constitutionality issue, Glenn adds:

By that time, the Administration had already
been engaging in eavesdropping outside of the
parameters of FISA, and yet the DoJ itself was
expressing serious doubts about the
constitutionality of that eavesdropping and
even warned that engaging in it might harm
national security because it would jeopardize
prosecutions against terrorists. Put another
way, the DoJ was concerned that it might be
unconstitutional to eavesdrop with a lower
standard than probable cause even as the
Administration was doing exactly that.

It's hard to understate just how damning this is to the Bush administration's legal defense of this program. Kudos to Glenn for digging this up. I'm shocked that the major media outlets have not yet picked up on this story. If ever there was a situation that demonstrated the value of blogs, this is it. Not only does this revelation put the lie to the administration's practical arguments in favor of circumventing FISA, but it exposes the absolute poverty of their statutory analysis. Almost a year after the AUMF was passed, Congress considered and rejected a bill that would have amended FISA in exactly the way the administration now claims was necessary (and with the support of the DoJ!). So clearly the AUMF did not authorize this kind of surveillance. The administration's legal defense is crumbling under their feet.