On January 26, The Washington Post, the Los Angeles Times, and Knight Ridder reported that a 2002 Department of Justice (DOJ) statement, in which the department explained its refusal to support a bill proposed by Sen. Mike DeWine (R-OH) to amend the Foreign Intelligence Surveillance Act (FISA) appears to undermine several of the Bush administration's key arguments for bypassing FISA to conduct warrantless domestic surveillance.

According to the Post's report, DOJ now seeks to defend its refusal to support the DeWine bill by drawing a distinction between that legislation, which it claims would have lowered the standard for conducting surveillance, and the National Security Agency's (NSA) warrantless surveillance, which DOJ claims complies with the stricter standard. But while the Post report cited one remark by Gen. Michael V. Hayden that contradicted DOJ's distinction, though without explicitly noting that contradiction, other media have yet to report that this latest defense of the administration's domestic spy program contradicts recent statements by Hayden, White House spokesman Scott McClellan, and President Bush himself -- each of whom has defended the program in the last week.

Hayden remark contradicts DOJ suggestion that “probable cause” and “reasonable basis” are “essentially the same”

According to the Post, DOJ spokeswoman Tasia Scolinos explained the administration did not support DeWine's bill because it would have lowered the standard for obtaining warrants to “reasonable suspicion.” By contrast, Scolinos said, the operative standard for NSA surveillance is “reasonable basis,” which she said was “essentially the same” standard as FISA's requirement for “probable cause.”

Scolinos's assertion directly contradicts a statement made by Hayden earlier in the week. In a January 23 press conference, Hayden, the former head of the NSA who was the first official put forth by the administration to defend the program, acknowledged that the “reasonable basis” standard employed by the NSA is “a bit softer than it is for a FISA warrant.” Hayden then directly acknowledged that the warrantless domestic surveillance had adopted a “lower standard” than required under FISA in response to a question from a reporter. The reports by the Post and the Los Angeles Times noted Hayden's “a bit softer” remark, but the Times did not report the DOJ defense.

Bush, McClellan comments blur distinction between “reasonable basis” and “reasonable suspicion”

Moreover, any distinction between the “reasonable basis” standard of the Bush administration's domestic spy program and the “reasonable suspicion” standard of the DeWine amendment was already blurred by Bush and McClellan, who each adopted a near-identical formulation to the “reasonable suspicion” standard while describing the administration's warrantless surveillance program. In a January 23 speech, Bush said: “What I'm talking about is the intercept of certain communications emanating between somebody inside the United States and outside the United States; and one of the [phone] numbers would be reasonably suspected to be an Al Qaeda link or affiliate” [emphasis added]. In a press briefing the next day, McClellan similarly said that the program “is focused only on communications in which one person is reasonably suspected of links to al Qaeda or affiliated terrorist organizations” [emphasis added].

Will the media report the administration's latest contradictions in defending program's legality?

Now that they have reported on the 2002 DOJ statement, will the Post, the Los Angeles Times, and Knight Ridder -- as well as other media who have not yet reported on the topic -- explore the veracity of the administration's response?

From the January 26 Post report:

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.”

From Hayden's January 23 press conference:

HAYDEN: You know, the 9-11 Commission criticized our ability to link things happening in the United States with things that were happening elsewhere. In that light, there are no communications more important to the safety of this country than those affiliated with Al Qaeda with one end in the United States. 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.

[...]

REPORTER: Just to clarify sort of what's been said, from what I've heard you say today and an earlier press conference, the change from going around the FISA law was to -- one of them was to lower the standard from what they call for, which is basically probable cause to a reasonable basis; and then to take it away from a federal court judge, the FISA court judge, and hand it over to a shift supervisor at NSA. Is that what we're talking about here -- just for clarification?

HAYDEN: You got most of it right. The people who make the judgment, and the one you just referred to, there are only a handful of people at NSA who can make that decision. They're all senior executives, they are all counterterrorism and Al Qaeda experts. So I -- even though I -- you're actually quoting me back, Jim, saying, “shift supervisor.” To be more precise in what you just described, the person who makes that decision, a very small handful, senior executive. So in military terms, a senior colonel or general officer equivalent; and in professional terms, the people who know more about this than anyone else.

REPORTER: Well, no, that wasn't the real question. The question I was asking, though, was since you lowered the standard, doesn't that decrease the protections of the U.S. citizens? And number two, if you could give us some idea of the genesis of this. Did you come up with the idea? Did somebody in the White House come up with the idea? Where did the idea originate from?

Thank you.

HAYDEN: Let me just take the first one, Jim. And I'm not going to talk about the process by which the president arrived at his decision.

I think you've accurately described the criteria under which this operates, and I think I at least tried to accurately describe a changed circumstance, threat to the nation, and why this approach -- limited, focused -- has been effective.

From McClellan's January 24 press briefing:

McCLELLAN: This is an important tool that helps to save lives by preventing attacks. It is a limited, targeted program aimed at al Qaeda communications, as the President pointed out yesterday. This program is focused only on communications in which one person is reasonably suspected of links to Al Qaeda or affiliated terrorist organizations. And it involves international communications.