One More Nail in the Coffin of the Bush Administration's Legal Position

Last week, Glenn Greenwald unearthed the Bush administration's 2002 statement to Congress opposing a proposed amendment to FISA by Senator Mike DeWine. The statement questioned the need for and the constitutionality of the DeWine amendment (which would have lowered the warrant standard under FISA from "probable cause" to "reasonable suspicion"). As Glenn noted, the position staked out by the administration in that statement is entirely inconsistent with the administration's current legal posture regarding the president's warrantless surveillance program. Remarkably, although this document was accessible online to anyone willing to spend a few minutes on Google, none of the major (or minor) news outlets managed to find it in the month-plus period of time since this scandal first broke. They were all out-scooped by a blogger.
And Glenn's find was just the tip of the iceberg. There are any number of embarrassingly contradictory statements that administration officials (including the President himself) made between September 2001 and December 2005 when the story first broke. For example, the press seems to be entirely ignoring the President's April 20, 2004 statement to an audience in Buffalo where he said the following:

Now, by the way, any time you hear the
United States government talking about a
wiretap, it requires -- a wiretap requires a
court order. Nothing has changed, by the way.
When we're talking about chasing down
terrorists, we're talking about getting a court
order before we do so. It's important for our
fellow citizens to understand, when you think
Patriot Act, constitutional guarantees are in
place when it comes to doing what is
necessary to protect our homeland, because
we value the Constitution.

Why that statement isn't repeated endlessly on the cable news shows, I just don't understand. It's not unlike Clinton's "I never had sexual relations with that woman" line, which the press never tired of repeating. In fact, it's far worse because it involves deceiving the public about whether a law designed to protect their constitutional rights is being followed.

Yesterday, I highlighted Bush's 2001 remarks upon signing the Patriot Act into law, where he thanked Congress for updating FISA to "allow surveillance of all communications used by terrorists, including e-mails, the Internet, and cell phones" and made it clear that until the Patriot Act was signed (six weeks after passage of the AUMF), he lacked the power to adequately surveil terrorists.

Well, today, using Google, I stumbled across yet another incriminating document. It's an October 20, 2005 letter from the Justice Department to Senator Arlen Specter responding to questions posed to Attorney General Gonzales at an April 2005 hearing discussing the Patriot Act. In it, the Justice Department states:

[T]he Foreign Intelligence Surveillance Act
(FISA), contains safeguards to ensure that
the government does not intrude on the
privacy of innocent Americans. These
safeguards include requirements that: all
targets of roving wiretap orders must be
identified or described in the order of the
FISA Court; the FISA Court must find
probable cause to believe the target is an
agent of a foreign power, such as a terrorist
or a spy, to issue a roving wiretap order. . . .

This letter was sent to Congress less than two months before the New York Times revealed that the administration had been circumventing FISA. Shortly thereafter, the Justice Department first asserted that the AUMF gave the President the authority to bypass FISA and that, at any rate, FISA was likely unconstitutional. A remarkable change of tune, no? While the section of the letter quoted above deals specifically with the roving wiretap provision of FISA, the letter unmistakably conveys the impression that the administration considers FISA to be a valid limitation on the executive branch's ability to conduct domestic surveillance.

Here's another part of the letter I found interesting. Gonzales had been asked what factors contribute to the total time needed to obtain a first-time surveillance order under FISA. Here's the Justice Department's response:

A variety of facts can affect the time it takes
to obtain an order for surveillance or search
under FISA. The main factors that determine
the time it takes to process a request for FISA
coverage are the priority assigned to the
request by the Intelligence Community and
the strength of the factual predication
underlying the request. Urgent requests that
meet the criteria and requirements of FISA
are handled as emergency or expedited
matters. Lower priority requests, as well as
those that require additional investigation or
other steps to fulfill the requirements of the
Act, are handled as promptly as possible.

In light of what we know now, this statement is almost comical. We now know that targets which don't meet the "factual predication" that FISA requires are surveilled anyway using the President's top secret FISA-bypass program. Perhaps this is the "additional investigation or other steps" to which the letter is refers.

I encourage you to read the entire letter. And while you're reading it, keep in mind that this is the same administration that only two months later asserted publicly that it had been bypassing FISA for over four years based on a statutory authority supposedly provided by the very people to whom this incredibly deceptive letter was addressed. Also keep in mind that this is the same administration that only two months later asserted that FISA was in all likelihood unconstitutional. I wonder what damning document will surface tomorrow . . .