[quote]BostonBarrister wrote:
Re: the Dewine Amendment –
100meters you really should read more than the opinion page of the NYT…
http://volokh.com/archives/archive_2006_01_22-2006_01_28.shtml#1138213577
Firstly, the whole claim that this debunks the administration’s position doesn’t even touch on the inherent authority argument, which is the key to the DOJ brief.
However, in particular, even the inference that is being attempted w/r/t the Dewine Amendment, namely that it proves there was no difficulty in obtaining FISA warrants, is pretty weakly based.
To excerpt Prof. Kerr’s observations, which I linked above:
[i]…I don’t read Baker’s statement ( Statement of James A. Baker on Proposed Amendments to the FISA: July 31, 2002 ) as a refusal to support the Amendment in the sense of a rejection of it. As I read Baker’s statement, he doesn’t take a position: he says that it raises a lot of difficult legal and practical questions, and that DOJ will contuinue to study those questions.
If Baker was in fact out of the loop of the NSA’s needs, that would make some sense: when he says that “we will need to engage in a significant review to determine the effect a change in the standard would have on our ongoing operations,” that may be because having a practical picture of the effect in the standard is a bit beyond IPR’s core mission. Greenwald seems to assume that Baker had the complete picture and was refusing to support the Amendment because he thought it wasn’t needed, but it’s not clear to me that this is accurate.
… I think it’s at least worth flagging: the DeWine amendment was somewhat similar to the NSA program, but it wasn’t precisely the same thing. For example, the DeWine amendment wouldn’t have altered the rules for electronic surveillance under 18 U.S.C. 1801(f)(1), as that provision applies only when a U.S. person is target (and the DeWine amendment sets a different standard only when the person targeted is a non-U.S. person).[/i]
To tie this back to the President’s inherent authority, the last thing DOJ wanted was a statute such as DeWine, because that would undermine the inherent authority argument – at least it would make it seem as if the President needed congress to authorize it. With that in mind, it would seem the Baker “we’re still looking at it” testimony shows is that:
(i) the Administration likely had doubts about whetner Congress would provide statutory authorization for the entirety of the new NSA program; and
(ii) the Administration did not want Congress to enact a half-assed version (the DeWine Amendment) – because such a request would undermine the “AUMF has already authorized it” argument DOJ was holding in abeyance, and because then there could possibly be a much bigger fight between Congress and the President with regard to his inherent authority.
Hence, the “we’ll get back to you after we’ve painstakingly examined your legislation” testimony.[/quote]
The admin says:
congress knew, congress approved, don’t need FISA.
Dewine amendment Shumer/Kyl amendment: FISA matters–hence amendments, or FISA does regulate president’s power, and we assume the president is following FISA.
meanwhile President is going behind congress’ back and spying without warrants anyway, and totally wasting congress’ time on purpose during testimony for these amendments, basically humbling congress.
Not to mention the admins response to this Dewine amendment “contradiction” was that reasonable suspicion was a lower bar than the NSA’s “reasonable basis to believe”
Tasia Scolinos:
The FISA ?probable cause? standard is essentially the same as the ?reasonable basis? standard used in the terrorist surveillance program. The ?reasonable suspicion? standard, which is lower than both of these, is not used in either program.
except Gen. Hayden said otherwise…and
reasonable basis doesn’t mean anything anyway, and when it is used it’s interchangeable with reasonable suspicion.
The Dewine amendment doesn’t debunk one claim it debunks many.