By Dan Eggen
Washington Post Staff Writer
Thursday, January 26, 2006
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."
But Justice Department officials disagreed, saying the standard the department opposed in 2002 is legally different from the one used by the NSA.
"The FISA 'probable cause' standard is essentially the same as the 'reasonable basis' standard used in the terrorist surveillance program," said spokeswoman Tasia Scolinos, using the term for the NSA program the White House has adopted. "The 'reasonable suspicion' standard, which is lower than both of these, is not used in either program."
Justice officials also said that even under a different standard, the process of obtaining a surveillance warrant would take longer than is necessary for the NSA to efficiently track suspected terrorists.
The DeWine amendment -- first highlighted this week by Internet blogger Glenn Greenwald and widely publicized yesterday by the Project on Government Secrecy, an arm of the Federation of American Scientists -- is the latest point of contention in a fierce political and legal battle over the NSA monitoring program.
Many Democrats and some Republicans, along with legal experts from both sides, have criticized the program as a clear violation of the 1978 FISA law, which makes it a crime to conduct domestic surveillance without a criminal or intelligence warrant. The administration argues that Bush acted legally under the congressional authorization to use military force against al Qaeda, and that FISA would be unconstitutional if it constrains his power as commander in chief.
During separate appearances this week, Gonzales and Gen. Michael V. Hayden, the deputy intelligence chief, also said the legal requirements under FISA made it difficult for intelligence agents to act quickly enough in many cases.
Under the NSA program, Hayden said, "the trigger is quicker and a bit softer than it is for a FISA warrant."
During Senate debate over DeWine's amendment in July 2002, James A. Baker, the Justice Department's counsel for intelligence policy, said in a statement that the Bush administration did not support the proposal "because the proposed change raises both significant legal and practical issues."
Baker said it was "not clear cut" whether the proposal would "pass constitutional muster," and "we could potentially put at risk ongoing investigations and prosecutions" if the amendment was later struck down by the courts. He also said Justice had been using FISA aggressively and played down the notion that the probable cause standard was too high.
A DeWine spokesman declined to comment on the issue yesterday.
Also yesterday, Senate Judiciary Committee Chairman Arlen Specter (R-Pa.) sent a list of 15 sharply worded questions to Gonzales in preparation for a Feb. 6 hearing on the legality of the NSA program. Specter asks, among other things, why the government did not ask Congress for new legislation to allow the spying.