AP's Shrader repeated media falsehood that DeWine bill would require “court or congressional approval” for warrantless wiretapping

Written by Josh Kalven

Published

The Associated Press reported that legislation recently introduced by Sen. Mike DeWine would “allow the government to conduct warrantless surveillance for up to 45 days before seeking court or congressional approval.” In fact, DeWine's bill would not grant Congress the authority to approve or reject the continued surveillance.

In a March 23 article, Associated Press staff writer Katherine Shrader reported that legislation recently introduced by Sen. Mike DeWine (R-OH) would “allow the government to conduct warrantless surveillance for up to 45 days before seeking court or congressional approval.” In fact, as Media Matters for America has previously noted, DeWine's bill would require that the government only explain to Congress why individual cases call for extended warrantless domestic wiretapping. His proposal would not grant Congress the authority to approve or reject the continued surveillance.

The Foreign Intelligence Surveillance Act (FISA) requires that the government seek a court warrant in order to conduct domestic surveillance for foreign intelligence purposes. Since the disclosure of the warrantless domestic surveillance program last year, legal experts and lawmakers from both parties have argued that the Bush administration violated this law by allowing the National Security Agency to eavesdrop on U.S. residents without warrants.

DeWine, along with Sens. Lindsey Graham (R-SC), Chuck Hagel (R-NE), and Olympia Snowe (R-ME), introduced the so-called "Terrorist Surveillance Act of 2006 on March 16, which he said would establish a “statutory framework” for the program while “protecting the rights and liberties of American citizens.” The legislation would allow surveillance of U.S. residents without court approval for a period of 45 days. But contrary to Shrader's assertion that DeWine's bill mandates “congressional approval,” the measure would not grant Congress the power to reject the extended surveillance if it disapproves of the administration's rationale in a given case. Rather, the bill would require the attorney general either to seek a warrant from the FISA court or to “certify ... under oath” to newly-formed House and Senate subcommittees why he has decided to circumvent court approval:

Every 45 days, the Attorney General must also review the surveillance of any individual targets under the program. -- If, at any time, the Attorney General determines that he has sufficient evidence to obtain a FISA warrant, he must seek a FISA warrant to continue surveillance on that target. -- If the Attorney General determines that he does not have sufficient evidence to obtain a FISA warrant, but nonetheless wants to continue surveillance, then he must certify in writing and under oath to the Terrorist Surveillance Subcommittees the following four things: 1) that all previous surveillance complied with this Act; 2) that there is insufficient evidence to obtain a warrant under FISA; 3) that the President has determined that continued surveillance of the target without a court order is necessary to protect the United States, its citizens, or its interests; and 4) that continued surveillance is being undertaken in a good faith belief that it will result in the acquisition of foreign intelligence information.

In a March 17 article, The Washington Post similarly reported that the DeWine legislation would require the administration “to convince” the subcommittees that individual cases of extended warrantless wiretapping are necessary, as Media Matters noted. On March 22, the Post issued the following correction:

A March 17 article about a Senate bill that would regulate the Bush administration's program of warrantless surveillance of Americans was imprecise about the Justice Department's options for continuing a wiretap beyond 45 days without a warrant. The department would have to notify a small group of House and Senate members. Those lawmakers could not order the administration to stop the surveillance, but Congress could bring pressure in several ways, such as conducting hearings or cutting off funds, according to the bill's sponsors.