DeWine Amendment Story Gets Some Traction

Ken AshfordWiretapping & SurveillanceLeave a Comment

One of the most annoying things about the blogosphere, in my opinion, is the over-inflated sense that many political bloggers believe of their impact.  But the gumshoe research by blogger Glenn Greenwald shows that, in his case, the praise he is now getting is 100% justified.

That’s why, when I first read Glenn’s revelation two days ago, I blogged "This is big".

It IS big, which is why the mainstream media can’t ignore it.  In fact, they swarm all over it in today’s papers.

WaPo covers it here (giving credit to Greenwald) and Knight Ridder here.  The Post’s lede paragraph says it all:

The Bush administration rejected a 2002 Senate proposal that would have made it easier for FBI agents to obtain surveillance warrants in terrorism cases, concluding that the system was working well and that it would likely be unconstitutional to lower the legal standard.

The Bush Administration’s argument now is just the opposite.  They say that the system under FISA was inadequate, and that it needs a lower standard ("reasonable basis" as opposed to "probable cause") is wholly constitutional.

UPDATE:  I like the LA Times lede grafs, too.  Simple, and to the point:

Government flipped on spy standard

Officials publicly opposed lowering it, then secretly did

Los Angeles Times

WASHINGTON — Four years ago, top Bush administration lawyers told Congress they opposed lowering the legal standard for intercepting the phone calls of foreigners in the United States.

At the same time, the administration secretly adopted a lower standard on its own, top administration officials said this week.

The government’s public position then was the opposite of its rationale today in defending its domestic spying without warrants, which has come under attack as a violation of civil liberties.

Yes, there’s the flip-flop on positions, but it needs to be stressed that, back in 2002, the White House rejected the lower standard because it thought it would be unconstitutional.


The Bush Administration response to the DeWine Amendment angle is perplexing, to say the least.   Here is Justice Department spokesperson 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.

I’m going to try to respond without getting all legal wonkish.

The first thing that needs to be pointed out is that the Administration is contradicting itself from what it has said in the past few days.  Here’s a Q&A with General Michael Hayden, former NSA director and currently Deputy Director of National Intelligence:

QUESTION: 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?

GEN. 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.

So, Hayden agreed with that the standard was lowered from "probable cause" to "reasonable basis"  (and clarified that the lowered standard allowed them to bypass the FISA court).

And that was from Monday!!!

And today, the Administration is saying that "probable cause" is essentially the same as "reasonable basis".  Well, it that’s true, then the NSA would have no justification to get around the FISA Court.

Also (and here’s where I get a little legal wonkish), the Administration quote above is trying to make like there is a difference between a "reasonable basis" standard and a "reasonable suspicion" standard.  In other words, they are trying to say these two sentences don’t mean the same thing:

"Your Honor, I have a reasonable basis for suspecting that illegality is going on, so I seek a wiretap warrant"


"Your Honor, I have a reasonable suspicion that illegality is going on, so I seek a wiretap warrant".

Honestly, this doesn’t require a law school education.  This is simply about the English language.  The two phrases mean the same thing.  Even if "reasonable basis" is a legal standard, it is the same legal standard as "reasonable suspicion".

In court cases that use "reasonable basis", the term is used to mean "reasonable suspicion".  For example, in the Supreme Court case of Florida v. L.J., Justice Ginsburg wrote:

“The officers, prior to the frisks, had a reasonable basis for suspecting J. L. of engaging in unlawful conduct: The reasonableness of official suspicion must be measured by what the officers knew before they conducted their search.”

[Emphasis mine]

Black’s Law Dictionary defines “reasonable suspicion” as:

A particularized and objective basis, supported by specific and articulable facts, for suspecting a person of criminal activity

Emphasis mine.

There is no definition for “reasonable basis” in Black’s.

You know why?  Because that phrase simply does not exist as a legal term of art. It is simply fabricated. As the quote above shows, “reasonable basis” is just another way of saying “reasonable basis for suspecting” …or, more simply, “reasonable suspicion”.

There is not a single case in the history of American jurisprudence which suggests that there is a “reasonable basis” standard which is somehow different than a “reasonable suspicion” standard. It’s one thing for laymen like Gen. Michael Hayden not to know, but the DoJ lawyers who are making up this new standard should have their licenses revoked.

But I don’t want this to be shadowed by underlying theme: the White House is in a corner.  It contradicted itself, and now is contradicting that it contradicting itself by making up legal standards that defy both history and common sense.