Media ignore differences in DeWine surveillance proposals

››› ››› ANDREW SEIFTER

Despite multiple reports on the subject, The New York Times, The Washington Post, the Los Angeles Times, and the Associated Press have ignored several important issues concerning a proposal by Sen. Mike DeWine (R-OH) to resolve any potential legal problems involving the Bush administration's warrantless domestic surveillance program by crafting legislation that would exempt the program from the Foreign Intelligence Surveillance Act.

Despite multiple reports on the subject, The New York Times, The Washington Post, the Los Angeles Times, and the Associated Press have ignored several important issues concerning a proposal by Sen. Mike DeWine (R-OH) to resolve any potential legal problems involving the Bush administration's warrantless domestic surveillance program by crafting legislation that would exempt the program from the Foreign Intelligence Surveillance Act (FISA). In all but one of these reports the media have ignored the potential infringement on the constitutional rights of Americans that DeWine's proposal would authorize. They also have failed to note the sharp differences between this latest proposal and one DeWine offered in 2002, which would have given the executive branch greater latitude under FISA but was rejected by the Bush Justice Department as likely unnecessary and possibly unconstitutional, even though it was narrowly tailored to avoid constitutional problems.

Since it was first reported on February 15 that DeWine was crafting legislation to allow the National Security Agency's (NSA) warrantless surveillance program to be exempt from FISA, the proposal has been frequently referenced in reports on the debate over the program:

  • Three times by The New York Times (see here, here, and here)
  • Three times by the Los Angeles Times (see here, here, and here).

But none of these reports noted that, by exempting the surveillance program from the restrictions under FISA, the DeWine proposal would grant the administration significantly more latitude -- and could thereby threaten Fourth Amendment rights to a significantly greater extent -- than his 2002 attempt to lower FISA's standard of proof for conducting surveillance of non-U.S. persons, who are entitled to less constitutional protection than the U.S. persons who would also be impacted by DeWine's current proposal. In fact, none of the reports even mentioned DeWine's 2002 bill, even though the Post and Los Angeles Times have previously reported on it.

As Media Matters for America has documented, DeWine offered legislation to reduce FISA's standard for conducting electronic surveillance of non-U.S. persons from "probable cause" to "reasonable basis" in 2002, but the administration refused to support the legislation, saying in a statement from the Justice Department that it was likely unnecessary and possibly unconstitutional.

Beyond omitting any mention of DeWine's 2002 proposal, the recent reports' failure to explore what DeWine's current proposal would mean for the standard of proof required by the warrantless domestic surveillance program is even more glaring, given the widely varying administration accounts of what that standard is. As Media Matters has documented, while the Justice Department has maintained that the operative standard required for the NSA to conduct warrantless surveillance is "essentially the same" as the "probable cause" standard required under FISA, Gen. Michael V. Hayden, deputy director of national intelligence, previously stated that the standard of proof under the NSA program is "a bit softer than it is for a FISA warrant," and directly acknowledged, in response to a question from a reporter, that the warrantless domestic surveillance program had adopted a "lower standard" than required under FISA. Hayden is the former head of the NSA and was the first administration official to publicly defend the program.

Even general concern about the constitutionality of DeWine's latest proposal has been largely ignored. Of the major newspapers, only the February 17 Los Angeles Times report noted that DeWine's proposal could be unconstitutional:

Critics have called the DeWine approach inadequate.

"To simply exclude communications from the coverage of FISA and allow secret wiretapping without a warrant ... would be a clear violation of the 4th Amendment," Kate Martin, director of national security studies at George Washington University, said in an e-mail message.

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