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I was previously a constitutional law and civil rights litigator and am now a journalist. I am the author of three New York Times bestselling books -- "How Would a Patriot Act" (a critique of Bush executive power theories), "Tragic Legacy" (documenting the Bush legacy), and With Liberty and Justice for Some (critiquing America's two-tiered justice system and the collapse of the rule of law for its political and financial elites). My fifth book - No Place to Hide: Edward Snowden, the NSA and the US Surveillance State - will be released on April 29, 2014 by Holt/Metropolitan.

Thursday, January 26, 2006

The significance of the Administration's July, 2002 statements about FISA

The Administration has tried to explain away its opposition to the DeWine legislation which would have loosened eavesdropping requirements under FISA by claiming that the DeWine standard of "reasonable suspicion" was lower than the standard which Bush’s secret program used ("reasonable basis to believe") and they were concerned that DeWine’s standard would be unconstitutional. Think Progress today compellingly demonstrates that the Administration’s response to this story is both false and contradictory.

But in addition to being false, the Administration’ explanation is also irrelevant -- really besides the point of this whole story. Certain media stories have effectively conveyed some of the issues raised by this matter but have not quite grasped the most significant part of it, and the Administration's response does not, as a result, address the real issue. What matters most here is not that the Administration refused to support the DeWine legislation (although that does matter), but what the Administration said in July, 2002 when explaining their refusal to support it.

The overriding point for this scandal is always that the law (FISA) makes it a crime to eavesdrop on Americans without judicial oversight and judicial approval, and the Administration engaged in such eavesdropping anyway and therefore broke the law (and continues to break the law) -- and that all of this stems from the Administration's theory that it has the right to violate the law because we are in "wartime." But ever since this scandal arose, the glaring question has always been: given how permissive FISA is and how rubber-stamping the FISA court has always been, what possible reason could the Administration have for deciding to eavesdrop without complying with the law and obtaining judicial approval under FISA? In short, what was their motive for breaking the law?

The Administration finally provided a coherent explanation for the first time on Tuesday when Gen. Hayden claimed that the "probable cause" requirement for getting a warrant under FISA was too restrictive and therefore did not allow them to engage in the eavesdropping they wanted. But the important point here is that Gen. Hayden's excuse for why the Administration decided to eavesdrop outside of FISA is transparently false, and -- in several different ways -- the Administration’s own statements from DoJ official James A. Baker made in connection with the DeWine legislation directly contradict the explanation it is now giving for its conduct:

(1) According to Baker's June, 2002 Statement, FISA’s "probable cause" standard was not creating any problems for the Administration in obtaining the eavesdropping warrants they needed.

Baker's Statement directly contradicts the explanation which the Administration sent Gen. Hayden to give on Tuesday as to why the Administration decided to eavesdrop outside of FISA – because, according to Gen. Hayden, the "probable cause" standard was too stringent. The fact that the Administration in 2002 clearly said that they were not aware of any problems presented by FISA’s "probable cause" showing -- and therefore perceived no reason to change FISA -- demonstrates that the explanation they are now giving as to why they eavesdropped without FISA oversight is simply false.

This, by itself, is an enormous story – the Administration finally, for the first time, offered a clear and coherent reason why they eavesdropped outside of FISA, and that explanation is clearly false, as proven by the Administration’s own statements in 2002 which directly contradict that explanation.

(2) Ever since this scandal was first disclosed, the Administration claimed that it had to eavesdrop outside of FISA because it needed "speed and agility" when eavesdropping, and -- without ever explaining why -- implied that FISA lacks this "speed and agility" (even though FISA allows warrantless eavesdropping for up to 72 hours). The President in his first Press Conference on this issue claimed (with no rationale given) that FISA was inadequate because "We've got to be fast on our feet, quick to detect and prevent." And in his Press appearance, Gen. Hayden claimed that the 72-hour window for warrantless eavesdropping was insufficient because the requirements for invoking it were still too cumbersome.

But, in his Statement to Congress, Baker expressly singled out the 72-hour window for warrantless eavesdropping (which was created by the Patriot Act) and specifically praised it for giving the Administration the speed and agility it needed to track terrorists:


One simple but important change that Congress made was to lengthen the time period for us to bring to court applications in support of Attorney General-authorized emergency FISAs. This modification has allowed us to make full and effective use of FISA's pre-existing emergency provisions to ensure that the government acts swiftly to respond to terrorist threats. Again, we are grateful for the tools Congress provided us last fall for the fight against terrorism. Thank you.

Does that sound like an Administration which thinks that FISA and its 72-hour window are insufficiently slow and too cumbersome to allow it to engage in the eavesdropping it wants? Clearly, the Administration was telling Congress that the changes which Congress effectuated to FISA (via the Patriot Act) had given the Administration everything it needed with eavesdropping power. The Administration was clearly telling Congress it was happy with the broad eavesdropping powers it had under FISA.

Thus, the Administration’s excuse from the time the scandal broke and repeated by Gen. Hayden two days ago – that FISA does not provide the necessary "speed and agility" for eavesdropping - was directly contradicted by its claims in June, 2002 that the Patriot Act’s FISA amendments give it all the speed and agility it needed.

Here is the critical point: if, as the Administration is now claiming, FISA was inadequate for eavesdropping, why was it telling the Congress in June, 2002 that FISA was perfectly adequate to enable all the eavesdropping it wanted, and even praising Congress for amending FISA (via the Patriot Act) and thereby giving the Administration everything it needed?

(3) There are several critical facts to note about Baker’s Statement:

(a) Baker was not some out-of-the-loop DoJ bureaucrat. To the contrary, he was the official in charge of the FISA application process, which means that if anyone would know if FISA really were impeding the eavesdropping which the Administration wanted to engage in, it would be Baker.

(b) This was not some lone-wolf Statement made by Baker, but rather, was the considered position of the Administration itself on this issue. As former Justice Department official and current Georgetown Law Professor Marty Lederman explained (to GWU Law Professor Orin Kerr):

Baker wasn't speaking for OIPR [Office of Intelligence Policy and Review] here, or on his own -- he was speaking for the Department ("I welcome the chance to provide the views of the Department"; "I thank the Committee for the opportunity to present the views of the Department"). And, as you and I know, his testimony would have been scrubbed inter-agency, through OMB, by all affected entities and agencies, including OVP and NSA. So, this was a careful, Administration-sanctioned delaying mechanism.

(c) Bush’s secret, FISA-bypass eavesdropping program began in late, 2001 -- more than 6 months before Baker’s Statement was issued. Thus, as of the time that the secret FISA-bypass eavesdropping was underway, the Administration’s own DoJ was not aware of any of the supposed problems with FISA which the Administration is now claiming caused it to bypass FISA, and the Administration specifically told Congress then the opposite of what it is now claiming (that FISA’s probable cause requirement impeded necessary eavesdropping).

(4) Virtually every significant political law-breaking scandal in our nation’s history is comprised of two components: (a) the law-breaking itself, and (b) the subsequent attempts to cover up and explain away the law-breaking with falsehoods and untrue explanations.

That is what we are seeing now. The Administration scrambled for a full month to explain why they had to eavesdrop outside of the very permissive FISA scheme, to explain why they eavesdropped with no judicial oversight even though the law makes it a criminal offense to do so. We had been fed nothing but incoherent gibberish about the need for "speed and agility" in this "different war."

Now we finally heard an explanation from the Administration as to why they supposedly had to eavesdrop in violation of FISA -- because FISA supposedly was too rigid to allow the eavesdropping they wanted to do -- and that explanation is clearly false, as proven by the Administration's own statements and conduct at the time.

Leaving aside the always-paramount fact that the Administration has no right in our system of government to simply violate laws when it claims it has a good reason to break the law – and that principle, from start to finish, is what this scandal is about – the fact that the Administration is disseminating patently false explanations for why it violated the law does also leave the quite pressing and still unanswered question:

What is the real reason the Administration chose to eavesdrop in violation of FISA -- i.e., in secret and with no oversight -- rather than within FISA and with oversight? There is still no viable answer to that question from the Administration. Whatever the real reason is, the Administration still has not disclosed it. One thing is clear: the explanation given by Gen. Hayden this week simply is untrue.

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