FISA UPDATE….I’m still confused about a number of things, but as near as I can tell here’s the state of play on the NSA’s domestic spying program:
The administration has acknowledged that the NSA program violated the FISA act. However, Attorney General Alberto Gonzales argues that the Authorization for Use of Military Force, passed shortly after 9/11, superseded FISA.
Yesterday, General Michael Hayden said that the reason they had to bypass FISA was because it required a showing of “probable cause” that the target of a wiretap request was a foreign power (i.e., either a terrorist organization or a foreign state). That standard was apparently too difficult to meet in many cases.
As Glenn Greenwald reports today, in 2002 congressman Mike DeWine introduced an amendment to FISA that would have retained probable cause as the standard for U.S. persons (i.e., citizens or foreigners with permanent residency) but lowered it to “reasonable suspicion” for non-U.S. persons.
Congress refused to pass DeWine’s amendment. This makes it plain that Congress did not intend for AUMF to loosen the restrictions of FISA.
So this leaves only the argument that the president’s inherent constitutional powers give him the authority to order wiretaps of U.S. citizens even when Congress has passed laws forbidding it. There is, as near as I can tell, no case law that supports this view.
It’s worth noting, by the way, that the administration has been adamant that calls are only monitored if one end of the call is outside the United States. But why not also monitor calls within the United States? Last month General Hayden said simply that “that’s where we’ve decided to draw that balance between security and liberty” ? in this case “we” meaning the president and the NSA. This rather strongly implies that George Bush believes there’s nothing stopping him from ordering 100% domestic wiretapping if he feels like it, and nothing Congress can do about it if he does. So much for Article I Section 8.