AG’s memo raises questions on Patriot Act
A footnote in Attorney General Alberto R. Gonzales’s 42-page legal memo defending President Bush’s domestic spying program appears to argue that the administration does not need Congress to extend the USA Patriot Act in order to keep using the law’s investigative powers against terror suspects.
On occasion facts creep into caca, and undermine entire swaths of caca.
In June, 2002, Republican Sen. Michael DeWine introduced legislation (S. 2659) which would have eliminated the exact barrier to FISA Hayden was abusing yesterday.
DeWine’s legislation 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 could have eliminated the probable cause barrier claimed by Bush cabal in their latest spin.
The Bush administration, in response, provided a Statement from James A. Baker,who prepares and presents all applications for electronic surveillance and physical search under the Act to the Foreign Intelligence Surveillance Court (FISA Court or Court).
Baker, in his written statement, blatantly bragged about the Patriot Act on the ground that the 72-hour window stated IN the Patriot Act gave Bush the speed and flexibility he needed:
The reforms in those measures (the PATRIOT Act) have affected every single application made by the Department for electronic surveillance or physical search of suspected terrorists and have enabled the government to become quicker, more flexible, and more focused in going up on those suspected terrorists in the United States.
& One simple but important change that Congress made was to lengthen the time period for us to bring to court applications in support of Attorney General-authorized emergency FISAs. This modification has allowed us to make full and effective use of FISA s pre-existing emergency provisions to ensure that the government acts swiftly to respond to terrorist threats. Again, we are grateful for the tools Congress provided us last fall for the fight against terrorism. Thank you.
The Baker 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.
Soooo& in 2002 the Administration refused to support elimination of the very barrier ( probable cause ) which Gen. Hayden claimed yesterday necessitated the circumvention of FISA. Doing so, they identified two independent reasons for opposing this amendment. The Justice Department was not aware of any problems:
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.
Baker, who headed the FISA warrant program was not aware of any difficulties in obtaining warrants under the FISA probable cause standard, and the Administration did not support the DeWine amendment to do so.
& 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.
Bush Administration s statement via Gen. Hayden as to why it was necessary to bypass FISA is a complete falsehood. Their current statement that the probable cause component of FISA was preventing it from engaging in the eavesdropping it needed is the opposite of what it told Congress when refusing to support the DeWine Amendment as documented by the Baker statement submitted to Congress in 2002.
The Baker/Dept. of Justice document is on the record here:
http://www.fas.org/irp/congress/2002_hr/073102baker
Spying on Americans isn’t half the fun if it’s legal!
Two points about the Baker document:
1) The DeWine Amendment would NOT have changed the “probable cause” component for American citizens according to the DOJ document you cite. Since the whole debate is about spying on American citizens, I’m not sure why you think the DOJ’s arguments contradict Hayden’s.
2) Part of the DOJ’s argument was their concern for losing the constitutional support for prosecuting people based on evidence gathered under the lower standard. The current NSA program may not be concerned at all with prosecution but rather simply intelligence gathering.
As far as the Boston Globe article is concerned, I found this analysis interesting:
Is the left going to support this view? It’s my understanding that OW and other commentors here have been critisizing this view. If that’s the case, then your consistent argument should be that the Patriot Act *IS* required for the president to legally investigate and prosecute alleged terrorists.
If you’re going to argue that Bush is claiming too much power in the name of fighting terrorists, then you should support the fact that the administration wants to continue the Patriot Act (with whatever revisions that can be agreed upon) in order to legitimize the government’s prosecutorial power…especially if you want to specifiy what powers the government really has.
The Bush administration: Damned when they claim inherent power, damned when they claim the need for legal specifics.
begoniabuzzkill,
You write:
But the DOJ writes (from the link you provide):
Specifically, what would the DeWine Amendment have changed to make it easier to spy on Americans?
“……The Bush administration: Damned when they claim inherent power, damned when they claim the need for legal specifics……”
The most glaring point of this issue is the fact the administration was offered, by a Republican congressman, to have LEGAL remedy by amending the FISA legislation to suit the so called needs to spy on Americans……
Yet the administration pointedly stated they were satisfied with and glorying in the Patriot Act’s – in the Baker Statement – http://www.fas.org/irp/congress/2002_hr/073102baker
“…. 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.
Baker, who headed the FISA warrant program was not aware of any difficulties in obtaining warrants under the FISA probable cause standard, and the Administration did not support the DeWine amendment to do so.
My own research and discovery of the DeWine amendment and the hours of sending it to news outlets yesterday was worth it . . . .seeing this being discussed in newspapers around the nation and world does give one hope.
A Justice Department spokesman confirmed Wednesday, January 26, 2006 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.
Darn those dangerous Quakers! Am still shaking from the scary High School Field trip (our tax dollars paid to spy on!)
Timothy Edgar, a lawyer on national security policy for the American Civil Liberties Union, also accused the administration of “remarkable duplicity” for having testified in public against the legal change while carrying it out in private.
The Bush administration has swept aside nearly 30 years of rules and regulations and has secretly brought the NSA back into the business of domestic espionage
As a result, we now have a government that doesn’t respect basic rules of constitutional government. Or, to put it another way, our government has redefined the Constitution in such a way as to justify its actions–and to provide legal protection for those who violate what used to be constitutional rights.
Eleanor Hill, a former Pentagon inspector general and the staff director of the joint congressional inquiry into 9/11, said that members of Congress had repeatedly asked the administration to recommend reforms of FISA. “The question was always asked of these witnesses: ‘What do you need?’ … There was plenty of time to raise this issue. You don’t just take it upon yourself to circumvent FISA. That attitude ignores the absolutely critical need for oversight.”
The bottom line is . . . The Patriot Act was nothing Bush needed in the first place if he, as he insists, was acting within the FISA laws he claims today.
Millions of “Patriot Act” dollars would not have been spent at our personal expense.
When Bush left the Texas gov’s office and was asked about the economic destruction being left behind . . . .Bush’s answer was “that’s the next guy’s problem”
So is the destruction of an admired destroyed democray.