The Bush Administration rejected a Congressional initiative in 2002 that would have lowered the legal threshold for conducting surveillance of non-US persons under the Foreign Intelligence Surveillance Act from “probable cause” that the target is a terrorist or agent of a foreign power to “reasonable suspicion.”
Administration officials said at the time that the legislative proposal was unnecessary and possibly unconstitutional.
Yet in a speech this week on the NSA domestic surveillance program, Deputy Director of National Intelligence Gen. Michael V. Hayden indicated that the executive branch had unilaterally adopted a similar “reasonable suspicion” standard.
Instead of FISA’s more stringent “probable cause” requirement, the presidentially-directed NSA surveillance operation applied to international calls that “we have a reasonable basis to believe involve al Qaeda or one of its affiliates,” Gen. Hayden said on January 23.
The unexplained contradiction between the Administration’s public rejection of the “reasonable suspicion” standard for FISA, and its secret adoption of that same standard was noted yesterday by attorney and blogger Glenn Greenwald.
See “The Administration’s New FISA Defense is Factually False,” January 24.
The 2002 legislative proposed, S. 2659 introduced by Rep. Michael DeWine (R-OH), “raises both significant legal and practical issues [and] the Administration at this time is not prepared to support it,” said James A. Baker of the Justice Department.
Among other concerns, Mr. Baker said, “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.”
See Mr. Baker’s prepared statement from the July 31, 2002 hearing of the Senate Intelligence Committee.
The transcript and other prepared statements from that Senate Intelligence Committee hearing on “Proposals to Amend the Foreign Intelligence Surveillance Act” are available here.
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