A July 2002 Justice Department statement to a Senate committee appears to contradict several key arguments that the Bush administration is making to defend its eavesdropping on U.S. citizens without court warrants. The Foreign Intelligence Surveillance Act, the law governing such operations, was working well, the department said in 2002. A "significant review" would be needed to determine whether FISA's legal requirements for obtaining warrants should be loosened because they hampered counterterrorism efforts, the department said then.
President Bush, Attorney General Alberto Gonzales and other top officials now argue that warrantless eavesdropping is necessary in part because complying with the FISA law is too burdensome and impedes the government's ability to rapidly track communications between suspected terrorists. In its 2002 statement, the Justice Department said it opposed a legislative proposal to change FISA to make it easier to obtain warrants that would allow the super-secret National Security Agency to listen in on communications involving non-U.S. citizens inside the United States.
Today, senior U.S. officials complain that FISA prevents them from doing that. James A. Baker, the Justice Department's top lawyer on intelligence policy, made the statement before the Senate Intelligence Committee on July 31, 2002. He was laying out the department's position on an amendment to FISA proposed by Sen. Mike DeWine, R-Ohio. The committee rejected DeWine's proposal, leaving FISA intact. So while Congress chose not to weaken FISA in 2002, today Bush and his allies contend that Congress implicitly gave Bush the authority to evade FISA's requirements when it authorized him to use force in response to the Sept. 11, 2001, attacks three days after they occurred - a contention that many lawmakers reject.
Glenn Greenwald, an Internet blogger, first connected the earlier Justice Department statement to the Bush administration's current arguments on his Web log, called Unclaimed Territory. Baker's 2002 statement drew new attention Wednesday as the White House continued its campaign to justify eavesdropping on Americans who are suspected of being in contact with al-Qaida or other terrorist groups, despite possible violation of FISA. Bush visited the NSA's sprawling complex at Fort Meade, Md., on Wednesday to deliver a closed-door morale-boosting talk to its workforce. He later repeated to reporters that the eavesdropping operation was limited to communications in which one participant was outside the United States. "When terrorist operatives are here in America communicating with someone overseas, we must understand what's going on if we're going to do our job to protect the people," Bush said.
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