The smoking gun
A July 2002 Justice Department statement to a Senate committee appears to contradict several key arguments that the Bush administration is making to defend its eavesdropping on U.S. citizens without court warrants.Kudos, Glenn.
The Foreign Intelligence Surveillance Act, the law governing such operations, was working well, the department said in 2002. A "significant review" would be needed to determine whether FISA's legal requirements for obtaining warrants should be loosened because they hampered counterterrorism efforts, the department said then.
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.
James A. Baker, the Justice Department's top lawyer on intelligence policy, made the statement before the Senate Intelligence Committee on July 31, 2002. He was laying out the department's position on an amendment to FISA proposed by Sen. Mike DeWine, R-Ohio. The committee rejected DeWine's proposal, leaving FISA intact.
So while Congress chose not to weaken FISA in 2002, today Bush and his allies contend that Congress implicitly gave Bush the authority to evade FISA's requirements when it authorized him to use force in response to the Sept. 11, 2001, attacks three days after they occurred - a contention that many lawmakers reject.
Glenn Greenwald, an Internet blogger, first connected the earlier Justice Department statement to the Bush administration's current arguments on his Web log, called Unclaimed Territory.
Update: The Los Angeles Times has a story up.
Four years ago, top Bush administration lawyers told Congress they opposed lowering the legal standard for intercepting the phone calls of foreigners who were in the United States, even while the administration had secretly adopted a lower standard on its own.So does The Washington Post.
The government's public position then was the mirror opposite of its rationale today in defending its warrantless domestic spying program, which has come under attack as a violation of civil liberties.
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 proposed legislation by Sen. Mike DeWine (R-Ohio) would have allowed the FBI to obtain surveillance warrants for non-U.S. citizens if they had a "reasonable suspicion" they were connected to terrorism -- a lower standard than the "probable cause" requirement in the statute that governs the warrants.
The administration has contended that it launched a secret program of warrantless domestic eavesdropping by the National Security Agency in part because of the time it takes to obtain such secret warrants from federal judges under the Foreign Intelligence Surveillance Act (FISA).
The wiretapping program, ordered by President Bush in 2001, is used when intelligence agents have a "reasonable basis to believe" that a target is tied to al Qaeda or related groups, according to recent statements by administration officials. It can be used on U.S. citizens as well as foreign nationals, without court oversight.
Democrats and national security law experts who oppose the NSA program say the Justice Department's opposition to the DeWine legislation seriously undermines arguments by Attorney General Alberto R. Gonzales and others, who have said the NSA spying is constitutional and that surveillance warrants are often too cumbersome to obtain.
"It's entirely inconsistent with their current position," said Philip B. Heymann, a deputy attorney general in the Clinton administration who teaches law at Harvard University. "The only reason to do what they've been doing is because they wanted a lower standard than 'probable cause.' A member of Congress offered that to them, but they turned it down."