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.
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.
Government wiretapping -- and who sets the rules -- has emerged at the center of a growing debate between the White House and Congress since the disclosure last month of the administration’s warrantless spying program.
A Justice Department spokesman confirmed Wednesday the administration had 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.
After the terrorist attacks of September 2001, lawmakers proposed several changes that would make it easier for the government to detect terrorists and their allies who might be operating in the United States.
Sen. Mike DeWine (R-Ohio) proposed making it easier for officials to obtain warrants to conduct wiretapping. The current law, the Foreign Intelligence Surveillance Act of 1978, said officials must have “probable cause” to believe someone was an agent of an international terrorist group before they could obtain a warrant to tap their phones.
This high standard proved to be a stumbling block at times. When Zacarias Moussaoui -- the man later dubbed the 20th hijacker of the Sept. 11 attacks -- was arrested in Minnesota in August 2001, officials in the Justice Department did not seek a warrant to search his laptop computer because they did not have probable cause to believe he was an Al Qaeda operative.
This was later judged to be a mistake. DeWine cited this when he proposed to lower the standard for obtaining a warrant to one of “reasonable suspicion.” This would permit the government to move quickly to search or eavesdrop on suspicious foreigners such as Moussaoui, he said, even if they lacked “probable cause” to show they were members of Al Qaeda.
But when the proposal came before a Senate committee, the administration’s lawyers testified that no change was needed.
“The administration at this time is not prepared to support it,” the Justice Department’s James A. Baker said of the DeWine amendment in congressional testimony. As counsel for intelligence policy at the time, he headed the office that sought search warrants from the secret Foreign Intelligence Surveillance Act court that meets inside the Justice Department.
The administration now defends the constitutionality of the warrantless domestic spying program and says it is necessary to avoid the “cumbersome” process of getting a warrant from the FISA court.
But in 2002, Baker told Congress it was not clear “whether a ‘reasonable suspicion’ standard for electronic surveillance would ... pass constitutional muster.”
Baker also said the existing standard was not a problem.
“We have been aggressive in seeking FISA warrants, and thanks to Congress’ passage of the [Patriot Act] we have been able to use our expanded FISA tools more effectively to combat terrorist activities,” he said. “It may not be the case that the probable cause standard has caused any difficulties in our ability to seek FISA warrants we require.”
DeWine’s proposal failed to pass the committee.
This week, top administration officials confirmed that before DeWine even made his proposal, they had adopted a “reasonable basis” standard for this eavesdropping.
“The president’s authorization allows us to track this kind of call more comprehensively and more efficiently. The trigger is quicker and a bit softer than it is for a FISA warrant,” Gen. Michael V. Hayden, the No. 2 ranking intelligence official and the former head of NSA, told reporters Monday.
Asked whether the key change was to switch from “probable cause” to a “reasonableness” standard, Hayden said, “I think you have accurately described the criteria under which this operates.”
A Senate Democrat, Patrick J. Leahy of Vermont, accused the administration of having tried “to paper over the legality of a secret spying program. If they really believed the current law is too burdensome, the Bush administration should have asked Congress to change it, but they did not. Instead a top lawyer in the Bush administration did just the opposite.”
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. “It seems they were being incredibly deceptive,” he said.
The Justice Department’s conflicting statements came to light Wednesday after Glenn Greenwald, a New York lawyer, posted the differing statements on a blog.