Will media report facts undermining Bush administration's "reasonable basis" defense of spy program's legality?

››› ››› JEREMY SCHULMAN & ANDREW SEIFTER

Numerous media outlets have cited Gen. Michael V. Hayden's defense of the Bush administration's warrantless domestic surveillance program while ignoring a Justice Department statement from June 2002 that contradicted Hayden's claims. Now that the statement has surfaced, will those media outlets now report the facts undermining Hayden's defense?

In the past two days, numerous media outlets have -- without challenge -- cited Gen. Michael V. Hayden's January 23 claim that the Bush administration's decision to bypass the Foreign Intelligence Surveillance Act (FISA) court to monitor domestic phone conversations is legal because the program has targeted only phone calls that the National Security Agency (NSA) has a "reasonable basis to believe involve Al Qaeda or one of its affiliates." Some media have repeated the more specific claim by Hayden, a deputy director for national intelligence and former head of the NSA, that the program is legal because the Fourth Amendment requires that the government have only a "reasonable basis" for the surveillance, rather than meet the stricter "probable cause" standard required for a FISA warrant.

But as attorney and blogger Glenn Greenwald noted on January 24, even as the administration was already bypassing FISA in 2002, the Justice Department issued a statement opposing proposed legislation by Sen. Mike DeWine (R-OH) to loosen the standard for such surveillance under FISA from "probable cause" to "reasonable basis." The administration argued in the statement that lowering the standard was likely unnecessary and possibly unconstitutional. In light of this revelation, which contradicts 1) Hayden's suggestion that the stricter "probable cause" requirement under FISA was inhibiting crucial intelligence gathering and 2) the administration's claim that Congress had tacitly authorized the administration's circumvention of FISA in conducting its secret surveillance program, will the media outlets that repeated Hayden's defense of the program's legality under the Fourth Amendment now report the facts undermining that defense?

The DeWine amendment

As Greenwald documented, DeWine introduced legislation on June 20, 2002, proposing "to modify the standard of proof for issuance" of FISA warrants from "probable cause to reasonable suspicion" in the case of warrants to conduct surveillance on "non-U.S. persons." From the Congressional Record:

S. 2659. A bill 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; to the Select Committee on Intelligence.

The "reasonable suspicion" standard that DeWine sought to establish is precisely the basis on which the Bush administration now claims to have determined the need to bypass FISA to spy on domestic phone calls without a court-ordered FISA warrant.

The Justice Department statement

Yet as Greenwald noted, when the Bush administration was asked to apprise Congress of its position on the DeWine bill, it issued a July 31, 2002, statement from James A. Baker, the Justice Department lawyer who oversees the Department's Office of Intelligence Policy and Review including "all applications for electronic surveillance." In that statement, the Justice Department opposed the DeWine bill over concern that the proposed change might not "pass constitutional muster" and expressed doubt that such a change was necessary: "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."

As Greenwald explained, the Bush administration's decision to issue the statement opposing the DeWine legislation indicates that the Department of Justice "was concerned that it might be unconstitutional to eavesdrop with a lower standard than probable cause even as the Administration was doing exactly that."

The fact that the bill would have limited the application of the lower standard to non-U.S. persons is significant. Whatever constitutional concerns DOJ had regarding the bill's application to non-U.S. persons presumably would have been compounded had the bill proposed to do what the Bush NSA program is reportedly doing: employing a lower standard, not for non-U.S. persons, but for U.S. persons -- that is, citizens and legal residents, entitled to the fullest protections under the Constitution.

From the Justice Department 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.

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.

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.

I assure [you] that we are moving expeditiously to answer these questions, which, of course, require input from agencies other than the Department of Justice that could be affected by the legislation.

Contradictions in the Bush administration's defense

Greenwald noted that, even though the DeWine amendment would have been "much less draconian than what the administration was already secretly doing" -- because it would have only lowered the standard for surveillance of non-U.S. persons -- the Senate did not approve the bill, holding hearings on the bill but not a vote. The Justice Department's opposition and the Senate's rejection of the bill undermine both Hayden's claim that the "probable cause" requirement under FISA was inhibiting crucial intelligence gathering and the administration's claim that Congress had tacitly authorized the secret surveillance program in any way, shape, or form:

This has extremely significant implications for the Administration's claims made yesterday through Gen. Hayden as to why it was necessary to bypass FISA. The Administration's claim 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. And its claim that Congress knew of and approved of its FISA-bypassing eavesdrop program is plainly negated by the fact that the same Congress was debating whether such changes should be effectuated and then refused to approve much less extreme changes to FISA than what the Administration secretly implemented on its own (and which it now claims Congress authorized).

Media reported Hayden's defense without challenge; will they now report contradictions?

Will the following media -- and others -- who repeated Hayden's claims without challenge now report the contradictions in the Bush administration's defense of the domestic surveillance program?

From the January 23 Associated Press article headlined "Bush Calls Surveillance Legal, Necessary":

Under the Foreign Intelligence Surveillance Act, government officials had to prove to a secretive intelligence court that there was "probable cause" to believe that a person was tied to terrorism. Bush's program allows senior NSA officials to approve surveillance when there was "reason to believe" the call may involve al-Qaida and its affiliates.

Hayden maintained that the work was within the law. "The constitutional standard is reasonable. ... I am convinced that we are lawful because what it is we are doing is reasonable," he said at the National Press Club.

From the January 24 New York Times article headlined "Administration Continues Eavesdropping Defense":

General Hayden took issue with the many news reports that have referred to a "domestic spying" program. Saying the program is not really domestic in nature, he emphasized that it was limited to calls and e-mail in which one end of the communication was outside the United States and which "we have a reasonable basis to believe involve Al Qaeda or one of its affiliates."

From the January 24 Washington Post article headlined "Campaign To Justify Spying Intensifies":

In addition, Bush and Hayden provided varying and sometimes contradictory descriptions of who has been targeted by the NSA spying. Bush said the program involved a "known al Qaeda suspect, making a phone call into the United States." Hayden said one of the ends of an international call must be overseas but did not indicate that the suspected al Qaeda link must be foreign.

At various points in his remarks, Hayden said the program targeted communications "that we have reason to believe are al Qaeda communications," that involve "someone we believe is associated with al Qaeda" or that "we have a reasonable basis to believe involve al Qaeda or one of its affiliates."

From the January 23 broadcast of CBS' Evening News:

JOHN ROBERTS (CBS chief White House correspondent): The White House is keenly aware of the political stakes over privacy issues, taking every opportunity to say it's mindful of civil liberties and that the program is not some massive drift net soaking up everyone's communications.

HAYDEN: We are going after very specific communications that our professional judgment tells us we have reason to believe are those associated with people who want to kill Americans.

ROBERTS: That is the argument President Bush hopes that people will buy into and see him as the protector-in-chief. And the White House believes if they do, they just might be able to turn this scandal into a virtue.

From the January 23 edition of Fox News' Special Report with Brit Hume:

JIM ANGLE (chief Washington correspondent): Sources tell Fox the fundamental reason FISA was insufficient for dealing with Al Qaeda is because it requires probable cause to show that the target of eavesdropping "knowingly engages in clandestine intelligence activities for or on behalf of a foreign power," which, of course, includes terrorists. But when U.S. intelligence agents capture or intercept phone numbers from key terrorists, such as Khalid Sheikh Mohammed or Ramzi Binalshibh, officials often cannot know whether the person on the other end is an agent or not until they listen to the calls. "You don't have enough information to show probable cause," says one knowledgeable source, "until you know what they are up to," which is why Hayden pointed to a different standard: "reason to believe."

HAYDEN: These are communications that we have reason to believe are Al Qaeda communications. A judgment made by American intelligence professionals, not folks like me or political appointees.

From the January 23, 10 a.m. ET edition of CNN Live Today:

DAVID ENSOR (national security correspondent): Well, the Bush administration sent a four-star general into the lion's den, so to speak, at the National Press Club today. General Michael Hayden, who was the director of the National Security Agency when President Bush first authorized this warrantless domestic surveillance, made a speech and answered questions, some of them rather blunt, rather hostile, questions like, "Is it open season on Arab-Americans?" Questions like, "Are you spying on anti-Bush groups in the United States?" General Hayden said that this is a very targeted program, a limited one, and one that monitors only international calls, only those that have a reasonable basis to believe involve Al Qaeda or one of its affiliates on one end or the other of the telephone call. Here's a sample of what he said:

HAYDEN [video clip]: This isn't a drift net out there where we're soaking up everyone's communications. We are going after very specific communications that our professional judgment tells us we have reason to believe are those associated with people who want to kill Americans. That's what we're doing.

ENSOR: Hayden said that in 2003, for example, there were 200 billion minutes of international telephone calls made by Americans to the rest of the world. He said there's just no way that the NSA could possibly monitor all those calls and stressed the targeted nature of this program. Now, he declined to discuss whether or not the legal justification needs to improved, whether or not there ought to be a change to where Congress or a judge should have to approve these kinds of surveillance. He simply said that, with today's telecommunications revolution going on, the FISA court, the court that has so far been set up to permit certain kinds of surveillance in the United States, simply, in his view, that law that set that up wasn't adequate for the job and this presidentially authorized program needed to be put in place to monitor any kind of Al Qaeda communications.

From the January 23 edition of CNN's The Situation Room:

ENSOR: General Michael Hayden, now the nation's number two intelligence officer, was head of the NSA in late 2001, when President Bush authorized it to listen in on certain international calls by Americans without a court warrant.

HAYDEN: This isn't a drift net out there where we're soaking up everyone's communications. We are going after very specific communications that our professional judgment tells us we have reason to believe are those associated with people who want to kill Americans. That's what we're doing.

ENSOR: Critics of the president's program include a former top White House counterterrorism aide.

RICHARD CLARKE (former National Security Council counterterrorism coordinator): I don't see any loophole that would authorize what he's doing. In other words, I think what they're doing is illegal.

From the January 23 edition of MSNBC's The Abrams Report:

DAN ABRAMS (host): In Washington, General Michael Hayden, a former head of the National Security Agency, told a news conference that the so-called FISA law that covered domestic eavesdropping before the 9-11 attacks couldn't do as much as the new program to protect Americans.

HAYDEN [video clip]: 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, but the intrusion into privacy is also limited. Only international calls and only those we have a reasonable basis to believe involve Al Qaeda or one of its affiliates.

[...]

ANDREW C. McCARTHY (senior fellow at the Foundation for the Defense of Democracies and National Review contributor): I think you are laying out the issue fairly, but the thing I think is missing in all of this is why avoid the FISA court, if that is what's going on?

ABRAMS: Yes. Why?

McCARTHY: And I think the answer to that is it's wartime. And it may very well be that a probable cause requirement, which a court would have to find before it could authorize an interception under FISA, may not be appropriate for a wartime situation where our goal is not to investigate or prosecute people, but to prevent the next attack from taking place.

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