The Ashford Zone Blog

This is big.

Again, Glenn Greenwald scores a hit.  As noted below, the Bush Administration (through Hayden) now explains that the reason that wiretaps were sought outside FISA was because it couldn’t meet the "probable cause" standard.

Glenn discovered an historical, documented problem with this argument.

In June, 2002, Republican Sen. Michael DeWine of Ohio introduced legislation (S. 2659) which would have eliminated the exact barrier to FISA which Gen. Hayden yesterday said is what necessitated the Administration bypassing FISA.  Specifically, DeWine’s legislation proposed:

to 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. . . .

The Bush Administration submitted a statement, written by James A. Baker, the Justice Department lawyer who oversees that DoJ’s Office of Intelligence Policy and Review.

Did the Bush Adminsitration support the Dewine Amendment which would have lowered the standard of proof from "probable cause" to "reasonable suspicion"?

Hell, no!  Here are the exact words from the Statement:

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.

So, in June, 2002, the Administration refused to support elimination of the very barrier ("probable cause") which Gen. Hayden claimed yesterday necessitated the circumvention of FISA.

In doing so, the Administration identified two independent reasons for opposing this amendment.   You ready for this? 

Reason one:  the Justice Department was not aware of any problems which the Administration was having in getting the warrants it needed under FISA:

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.

Reason Two:  The Justice Department expressed serious doubts as to the constitutionality of the lower standard!

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.

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.

Glenn adds the following:

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 3 different respects, DeWine’s FISA amendment was much, much less draconian than what the Administration was already secretly doing (i.e., (a) lowering the evidentiary standard, (b) eliminating judicial oversight, and (c) 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.

"The Bush administration is bracing for impeachment hearings in Congress," Insight magazine reports.

"Sources said a prelude to the impeachment process could begin with hearings by the Senate Judiciary Committee in February. They said the hearings would focus on the secret electronic surveillance program and whether Mr. Bush violated the 1978 Foreign Intelligence Surveillance Act."

Said the source: "Our arithmetic shows that a majority of the committee could vote against the president. If we work hard, there could be a tie."

Insight Magazine, by the way, is the magazine supplement to the Moonie-owned conservative daily, the Washington Times.

But . . . wow.  Whatever.  Let’s get the show on the road.

One of the reasonable defenses of the NSA wiretapping — perhaps the only reasonable defense offered by the neocons — was that the "wiretapping" simply wasn’t "wiretapping" as we know it.  According to conservative pundits, what the NSA was doing was emplying novel technologies which enable our intelligence boys to do "data-mining", where thousands (if not millions) of phone calls and emails are electronically monitored for key phrases which indicate potential terrorist activity.

Bush supporters argue two things with respect to this: (1) data-mining doesn’t fall within the "wiretapping statutes" such as FISA, because there is no specific "target"; and (2) even if it did, it would be virtually impossible to obtain warrants for hundreds of thousands of people.

Administration apologists further argue that the White House couldn’t seek congressional approval for this program because it utilized super advanced technology that we couldn’t risk exposing to al Qaeda.

These are all salient points, except for one thing:  it’s not "data-mining" that we’re talking about.  We learned this yesterday in no uncertain terms.

General Michael Hayden, the deputy director of national intelligence, defended the NSA’s domestic spying program yesterday:

Hayden stressed that the program "is not a drift net over Dearborn or Lackawanna or Freemont, grabbing conversations that we then sort out by these alleged keyword searches or data-mining tools or other devices that so-called experts keep talking about. This is targeted and focused."

So Hayden is saying that the NSA program isn’t some kind of large-scale data mining operation that the authors of the FISA act never could have foreseen. Rather, it’s "targeted and focused" and involves "only international calls and only those we have a reasonable basis to believe involve al Qaeda or one of its affiliates."

In other words, it’s precisely the kind of monitoring that the FISA court already approves routinely and in large volumes. Another few hundred requests wouldn’t faze them in the least.

With that canard properly plucked, we’re back to the original questions:  Why didn’t the Administration seek warrants from the FISA court, who would no doubt have approved them if there was indeed (as the Adminsitration assures us) a reasonable belief that the target was al Qaeda?  Was the Bush Administration merely being lazy, or were they engaging in wiretapping which they knew to be violative of the law and the Constitution?

Hayden provides insight to these questions as well.  According to Hayden, the reason the President wanted to bypass FISA was because FISA requires a showing of "probable cause" in order to obtain a FISA warrant for eavesdropping on telephone conversations, and the President believed that standard was too burdensome.  So the President issued an executive order:

The president’s authorization allows us to track this kind of call more comprehensively and more efficiently. The trigger is quicker and a bit softer than it is for a FISA warrant, 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. . . .

So we’ve gone from "probable cause" to the softer standard of "reasonableness".

When Hayden says that the President’s Executive Order allows eavesdropping using a standard that "is a bit softer than it is for a FISA warrant," what he’s saying, of course, is that the President ordered eavesdropping which FISA prohibits. FISA makes it a criminal offense to eavesdrop without a warrant from a FISA court, and Bush ordered eavesdropping without those warrants. Thus, Hayden claims that when NSA now wants to eavesdrop, it does not need to comply with FISA, but instead, has "two paths" to choose from:

If FISA worked just as well, why wouldn’t I use FISA? To save typing? No. There is an operational impact here, and I have two paths in front of me, both of them lawful, one FISA, one the presidential — the president’s authorization. And we go down this path because our operational judgment is it is much more effective. So we do it for that reason.

Sadly (for Bush supporters), Hayden is grossly mistaken.  There is no softer "second path".  Read Section 1809 of FISA, which expressly provides that "[a] person is guilty of an offense if he intentionally – (1) engages in electronic surveillance under color of law except as authorized by statute. . . .".   A presidential authorization, such as the one described by Hayden, is not a statute.

Need more?  Here’s the final nail in the coffin:  Section 2511(2)(f) provides that FISA "shall be the exclusive means by which electronic surveillance . . . may be conducted."

FISA, written in the wake of Nixon abuses of wiretapping, was unquestionably intended to be the absolute word on government electronic surveillance — i.e., when it can and can’t be done, and more importantly, how it is done.  It was all-encompassing.  By its very own terms, there is no "other way".

Glenn Greenwald has more thoughts, including this excellent summation:

In essence, what we have from the Administration, then, is the "Bad Law" defense to criminality: "I did break the law, but the reason I broke the law was because it wasn’t a very good law to begin with."