On June 20, 2002, Senator Mike Dewine R-OH proposed legislation to modify the standard of proof for issuance of FISA warrants. The bill would have changed the threshold from "probable cause" to "reasonable suspicion".The Bush Administration opposed the bill with James A. Baker writing the Justice Department Statement. Their concern was that the proposed change might not "pass constitutional muster".
Here is some of what Baker wrote:
(snip)
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.
(snip)
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
(snip)
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.
(snip)
.....there may be little to gain from the lower standard and, as I previously stated, perhaps much to lose. Media Matters has all the details here.
If I'm not mistaken, they were already spying under this program - while they were stating that it might not be legal. I'm sure the Administration will argue that they did their review and found that this spying was within the law. But, that does not get them off of the hook for using the "reasonable suspicion" standard prior to thinking it was legal.
I would love to see James Baker interviewed about this.
Whenever Bush says he was spying in order to protect Americans "since we are a country at war," it should be pointed out that Baker, on behalf of the administration, said this activity would "potentially put at risk ongoing investigations and prosecutions."
ReplyDeleteSo much for trying to make the country safer!
BTW - I'm finishing up a 2-part post speculating on the meaning of recent news related to domestic spying. Warning - Get out your tin foil!
Can't wait to read it.
ReplyDeleteStill the most glaring thing to me that has really gone unreported in the "Retro Media" was General Hayden claiming that "Probable Cause" is not part of the 4th Amendment. And he is the guy who was in charge at the start of this domestic spy program.
They just f---ing Lie and get away with it.
Now they are obstructing the Katrina investigation and McClellan is rewriting history regarding the whole N.O. debacle.
I don't know if I can take it anymore.
I feel like I'm innocently laying on the scorers table and people keep dumping beers on me. I just want to run up in the stands and start swingin!
I saw a video on Olbermann of Hayden saying, nearly verbatim, "If there's one thing the NSA knows, it's the 4th amendment!"
ReplyDeleteHeck of a job, Haydie!
I'm no constitutional scholar, but it took me less than two minutes to find the text of the 4th Amendment and see that he was wrong. And yet none of the articles I read that day from WP, AP, NY Times bothered to check and report that Hayden's (Bush administration,s) argument was factually wrong! But it was all over the Blogs.
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