Thursday, January 26, 2006

Administration Flip-Flopped on FISA
Administration Flip-Flopped on FISA
Michelle Pilecki

So this is how good journalism operates in the 21st century: credible blogger digs up great scoop, the always-out-in-front Knight Ridder runs with it, and the "papers of record" finally take notice. And the blogger gets proper credit.

Glenn Greenwald has been pursuing the warrantless eavesdropping story at Unclaimed Territory, where he argued on Tuesday that "The Administration's new FISA defense is factually false." And he's got the goods:

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. . . .

In other words, DeWine's bill, had it become law, would have eliminated the "probable cause" barrier (at least for non-U.S. persons) which the Administration is now pointing to as the reason why it had to circumvent FISA.

He has a lot of documentation and some good arguments at his site. Persuasive stuff. KR followed up on Wednesday:

President Bush, Attorney General Alberto Gonzales and other top officials now argue that warrantless eavesdropping is necessary in part because complying with the FISA law is too burdensome and impedes the government's ability to rapidly track communications between suspected terrorists.

In its 2002 statement, the Justice Department said it opposed a legislative proposal to change FISA to make it easier to obtain warrants that would allow the super-secret National Security Agency to listen in on communications involving non-U.S. citizens inside the United States.

Today, senior U.S. officials complain that FISA prevents them from doing that.

The Washington Post kicks in on Thursday: "The Bush administration rejected a 2002 Senate proposal that would have made it easier for FBI agents to obtain surveillance warrants in terrorism cases, concluding that the system was working well and that it would likely be unconstitutional to lower the legal standard."

The Los Angeles Times, according to Daily Kos diarist EZ Rider, will also be weighing in later today:

[A] Justice Department spokesman confirmed Wednesday the administration opposed changing the law in 2002 in part because it did not want to publicly debate the issue.

``There was a conscious choice not to have a public discussion about it. It could have exposed the program. This was a military defense intelligence program,'' said the spokesman, who asked not be named because of the sensitivity surrounding the still-classified presidential order on wiretapping.