The White House legal defense completely falls apart — Part II

January 26, 2006

Just to follow up on the last post, it’s worth taking a moment to consider the Bush administration’s defense against the charge that it rejects the same legal standard now that it embraced in 2002.

…Justice Department officials disagreed, saying the standard the department opposed in 2002 is legally different from the one used by the NSA.

“The FISA ‘probable cause’ standard is essentially the same as the ‘reasonable basis’ standard used in the terrorist surveillance program,” said spokeswoman Tasia Scolinos, using the term for the NSA program the White House has adopted. “The ‘reasonable suspicion’ standard, which is lower than both of these, is not used in either program.”

At this point, I’m confused. According to this defense, Bush’s warrantless-search program uses a “reasonable basis” standard, which is easier to meet than a “probable cause” standard. Fine. But this administration spokesperson told the WaPo that the two standards are “essentially the same.”

Isn’t this at odds with the official administration line? The White House and its allies have insisted that Bush had to circumvent FISA because its legal thresholds were too stringent. Now, we hear that the legal standards aren’t terribly different after all.

It seems the defenses are stepping on each other. When the administration was caught circumventing the law, the Bush gang’s line was that FISA’s legal standard for a warrant is too high. When the administration is caught having opposed a change to FISA to an easier threshold, the Bush’s gang’s line is that the competing legal standards are “essentially the same.”

Maybe the brilliant political minds at the White House can sort this out and get back to us.

Will somebody who has any kind of power please do something to stop these idiots.

  • Will somebody who has any kind of power please do something to stop these idiots.

    THey’ve got the White House, Senate, House, and Courts. I think they have the power until voters take it away.

  • And what they dont have, they will steal. How do you take power from the people??? — spy on them. Pretty obvious what’s going on here, dont you think? Bring on the dictatorship!

  • “How do you take power from the people?”

    Or you could get the Chairman of a electronic voting machine manufacturer to promise that you will win Ohio.

    Remember that one?

  • Or your team can do whatever is needed to get crooked fawning Secretaries of State (i.e. election commissioners) in big electoral prizes like Florida and Ohio, who can then unlawfully purge the voter lists, create rules that intimidate and harass the poor and minorities, approve untested and unverifiable balloting methodlogies, and block any investigations or challenges. That works, too.

  • In addition (and this is slightly legal wonkish, so forgive me), there simply is no such thing as a separate “reasonable basis” standard with regard to the Fourth Amendment.

    There is a “reasonable suspicion” standard, which is different from the “probable cause” standard.

    When lawyers and courts talk about “reasonable basis”, they merely mean “reasonable basis to suspect….”, or “reasonable suspicion”. It’s the same thing.

    In other words, the DoJ mouthpiece just made up something which never existed before in the entire 200 years of Fourth Amendment jurisprudence.

    So not only are they contradicting themselves, they’re simply making things up in the process.

    Anyway, I’m waiting for the response from “lawyers” the Powerline. I suspect that the first post on the subject will begin “I haven’t been following the whole thing about the DeWine Amendment closely, but it seems to me on first blush that it’s much ado about nothing,” Then they’ll proceed to avoid the salient points made by the likes of you and me.

  • CB,

    Their logic is simple:

    1. The FISA standard was too high
    2. The DeWine Ammendment didn’t go far enough (which means it didn’t say the Prez could do whatever he wanted whenever he wanted).
    3. They didn’t go along with the DeWine Amm. because they were already getting around the FISA issue (or ignoring it).
    4. They’re going to hit us with “The DeWine Ammendment was just another peice of legislation that did not give this administration the power to properly protect Americans” or some crap like that.

    I have thought for a long time that the biggest mistake The Bush-iano Family in pulling this off is that they really believed “secret” programs would remain secret.

    In truth, the only real “oversight” in Washington these days belongs to the ‘leaks’ and ‘whistleblowers’,

  • Ken is absolutely right. The quote from the DoJ in the Post article makes absolutely no sense from a legal standpoint.

    It seems the defenses are stepping on each other.

    That’s exactly right, Steve. They are so tangled up in knots right now that they don’t even know what they’re saying. Their legal position is a house of cards and sooner or later it will totally collapse. They’re just trying to run out the clock right now and avoid being legally rebuked prior to the next Congressional election. Their deepest fear is that the Democrats will manage to take back one of the chambers of Congress and thereby regain the subpoena power. If that happens, suddenly all the scandalls, all the skeletons in the closet, will be in danger of being exposed. So for the immediate future, they’ve just decided to pound the table as loudly and incoherently as possible and hope that it’s enough to intimidate Congress and the judiciary from doing anything about this.

  • A possible reason that the administration did not feel a need to ask for the FISA standard to be lowered is that the extra-FISA spying never had anything to do with prosecuting people. Rather it was part of an extra-judicial system which included extraordinary rendition, black sites, torture and enemy combatants. In this regard, it would be interesting to know if Padilla was detained as an enemy combatant on the basis of an extra-FISA intercept.

    I seriously doubt that there is any recognizable judicial standard used by the NSA to conduct the warrantless spying since no objective party would ever review the program. I think the Hayden press briefing, where this latest twist was introduced, was just a slightly more coherent version of the same pr gibberish we have been seeing on this from Bush. It was supposed to have us going away thinking,”yea, that’s seems like a reasonable thing. They’re level headed. I am not too worried.” Well, I’m very worried.

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