Thursday, January 26, 2006

They Had the Chance

From the Washington Post:

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 proposed legislation by Sen. Mike DeWine (R-Ohio) would have allowed the FBI to obtain surveillance warrants for non-U.S. citizens if they had a “reasonable suspicion” they were connected to terrorism — a lower standard than the “probable cause” requirement in the statute that governs the warrants.


Democrats and national security law experts who oppose the NSA program say the Justice Department’s opposition to the DeWine legislation seriously undermines arguments by Attorney General Alberto R. Gonzales and others, who have said the NSA spying is constitutional and that surveillance warrants are often too cumbersome to obtain.

“It’s entirely inconsistent with their current position,” said Philip B. Heymann, a deputy attorney general in the Clinton administration who teaches law at Harvard University. “The only reason to do what they’ve been doing is because they wanted a lower standard than ‘probable cause.’ A member of Congress offered that to them, but they turned it down.”

First, kudos to Glenn Greenwald at Unclaimed Territory for bringing this to light — quite a coup on the SCLM to have a blogger scoop them.

So why did the Bush administration turn down the DeWine amendment? Well, I’m sure they’ll throw out a lot of legalistic jargon and other balderdash, but when it comes right down to it, they rejected it because it wasn’t their idea and they wanted to make sure that if they were going to lower the bar — or just toss it aside — they wanted it on their terms, not on what Congress tells them it should be.

Who needs Congress anyway?