Wednesday, January 25, 2006

Significant Legal and Practical Issues

Jeff points us to this discovery. Be sure to read his take, and the original screed he references. The meat:
In June, 2002, Republican Sen. Michael DeWine of Ohio introduced legislation (S. 2659) which would have eliminated the exact barrier to FISA which Gen. Hayden yesterday said is what necessitated the Administration bypassing FISA. Specifically, DeWine's legislation proposed:
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. . . .
In other words, DeWine's bill, had it become law, would have eliminated the "probable cause" barrier (at least for non-U.S. persons) which the Administration is now pointing to as the reason why it had to circumvent FISA.
WOW! Almost exactly what the Administration is making clear they should be able to do now. What's all the fuss, the GOP controlled Congress and White House will sail this baby through with a tip of the hat and the Our Gang 'Hi' Sign. But WAIT! Not so fast:
a Statement from James A. Baker, the Justice Department lawyer who oversees that DoJ's Office of Intelligence Policy and Review....[R]egarding DeWine's specific proposal to lower the evidentiary standard required for a FISA warrant, Baker said that:
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.
With that statement, can we assume that the Administration's behavior regarding their use of surveillance outside of the FISA requirements "raises both significant legal and practical issues". I mean, they said it, so it must be so!!


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