Bush team flip-flopped on spy standards By David G. Savage
Los Angeles Times
WASHINGTON - Four years ago, top Bush administration lawyers told Congress they opposed lowering the legal standard for intercepting the phone calls of foreigners who were in the United States, even while the administration secretly adopted a lower standard on its own.
The government's public position then was the mirror opposite of its rationale today in defending its warrantless domestic spying program, which has come under attack as a violation of civil liberties. Government wiretapping - and who sets the rules - has emerged at the center of a growing debate between the White House and Congress since the disclosure last month of the administration's warrantless spying program.
A Justice Department spokesman confirmed Wednesday that the administration opposed changing the law in 2002 in part because it did not want to publicly debate the issue.
''There was a conscious choice not to have a public discussion about it. It could have exposed the program. This was a military defense intelligence program,'' said the spokesman, who asked not be named because of the sensitivity surrounding the still-classified presidential order on wiretapping.
Sen. Patrick Leahy, D-Vt., accused the administration of having tried ''to paper over the legality of a secret, spying program. If they really believed the current law is too burdensome, the Bush administration should have asked Congress to change it, but they did not. Instead, a top lawyer in the Bush administration did just the opposite.''
Timothy Edgar, a lawyer on national security policy for the American Civil Liberties Union, also accused the administration of ''remarkable duplicity'' for having testified in public against the legal change while carrying it out in private. ''It seems they were being incredibly deceptive,'' he said.
In the wake of the terrorist attacks of Sept. 11, lawmakers proposed several changes to make it easier for the government to detect terrorists and allies who might be operating in the United States.
Sen. Mike DeWine, R-Ohio, proposed making it easier for officials to obtain warrants to conduct wiretapping. The current law, the Foreign Intelligence Surveillance Act of 1978, said officials must have ''probable cause'' to believe someone was an agent of an international terrorist group before they could obtain a warrant to tap phones.
This high standard proved to be a stumbling block at times. When Zacarias Moussaoui - the man later dubbed the ''20th hijacker'' - was arrested in Minnesota in August 2001, the Justice Department did not seek a warrant to search his computer because they did not have probable cause to believe he was an al-Qaida operative.
This was later judged to be a mistake. DeWine cited this example when he proposed to lower the standard for obtaining a warrant to one of ''reasonable suspicion.'' But when the proposal came before a Senate panel, administration lawyers testified that no change was needed.