Wiretapping Legal, After The Crime?

Today, in a White House Gaggle aboard Air Force One, Deputy Press Secretary Trent Duffy was asked, by an unnamed reporter, about whether or not the Bush administration would back legislation put forth by Senator Mike DeWine (R-OH), which would exclude George Bush's warrantless NSA wiretapping program from the Foriegn Intellegence Surveilence Act.

Air Force One

Aboard Air Force One
En route Tampa, Florida
Press Gaggle by Trent Duffy

Q Actually, can I ask one more? I'm sorry. On the NSA program, apparently the White House is agreeing to actually look at legislation. Do you know if the White House would agree to legislation that would specifically authorize the NSA program under FISA, and bring it under FISA rules?

MR. DUFFY: Well, I'll decline to get into the specifics about the discussions, but the White House does look forward to working on legislation to further codify the President's authority. I believe that Senator DeWine has offered some good legislative principles in this area, and we look forward to working with the Congress on that. The President believes that he has the authority necessary, but of course we're willing to work with the Congress if they feel that further codification of that would be necessary.

The legislation being put forth from Senator DeWine calls for the rewording of FISA from using the term "probable cause" to use the more watered down "reasonable doubt."

I will post the legislation as soon as I can find it.

This would not be the first time that DeWine has tried to have FISA ammended to better serve the Bush administrations warrantless NSA wiretapping program. On June 20, 2002 the Senate rejected his bill aimed at taking the legs out from under FISA.

Senator Mike DeWine (R-OH)

Congressional Record

June 20, 2002

Page S5852-S5859

A bill to amend the Foreign Intelligence Surveillance Act of 1978 to modify the standard of proof for issuance of orders regarding non-United States persons from probable cause to reasonable suspicion; to the Select Committee on Intelligence.

The Senate rejected DeWine's FISA ammendment on the advice of James Baker III. Glenn Greenwald has some great commentary on this at Unclaimed Territory on why the Senate rejected DeWine the first time he tried to hinder FISA.

In short James A. Baker III, then Council for Intellegence Policy and the person who ran the Office of Intellegence Policy and Review, submitted a letter to The Senate Select Committee on Intellegence, which stated that DeWine's FISA amendment was 'not supported' by the Bush administration.

James A Baker III

Statement from James A. Baker

July 31, 2002

Concerning Proposals to Amend The Foriegn Intellengence Surveilence Act of 1978

The Department of Justice has been studying Sen. DeWine's proposed legislation. Because the proposed change raises both significant legal and practical issues, the Administration at this time is not prepared to support it.

It would appear that there is a second version of Baker's letter to the Intellegence Committee. The second letter uses the following wording. (Hat Tip: mr ho)

Statement from James A. Baker
July 31, 2002

Concerning Proposals to Amend The Foriegn Intellengence
Surveilence Act of 1978

The Department of Justice has been studying Sen. DeWine's proposed legislation. Because the proposed change raises both significant legal and practical issues, the Administration is still in the process of evaluating this legislation.

Why did the Bush administration have James A. Baker send a letter to Congress stating that they did not support changing "reasonable doubt" to "probable cause" on July 31, 202, when George Bush himself admitted that he authorized his warrantless NSA wiretapping program in "the weeks following the terrorist attacks on our nation." Not months, weeks. This means that the Bush administrations warrantless NSA wiretapping program was already underway.

Radio Address 12/17/05

White House

December 17, 2005

President's Radio Address

In the weeks following the terrorist attacks on our nation, I authorized the National Security Agency, consistent with U.S. law and the Constitution, to intercept the international communications of people with known links to al Qaeda and related terrorist organizations.

The irony is that the DeWine FISA amendment probably would have passed the Senate if the James A. Baker letter wouldn't have been sent. Just because the Bush administration wants "reasonable cause" now doesn't mean their warrantless NSA wrietapping program wasn't against the law then.

Senator Mike DeWine appeared on Fox News and described how he doesn't think there should be a debate about whether the warrantless NSA wiretapping program is legal or not. Faiz Shakir over at Think Progress has more on this.

Fox News

February 17, 2006

Mike DeWine On His Legislation to Amend FISA

You know, there’s been some controversy about whether or not this program is legal or is not legal. I think we need to get beyond that. And the vast majority of American people believe these calls need to be listened to. But we don’t want to have any kind of debate about whether it’s constitutional or not constitutional. So I think we need to put that beyond us.

Of coourse Mike DeWine doesn't want a debte about the Consititutionallity of his legislation, becase as Baker's letter states in both forms, "the proposed change raises both significant legal and practical issues."