Saturday, January 28, 2006
Dept. of Justice RhetIraq: James A. Baker
Who: James A. Baker, Department of Justice Counsel for Intelligence Policy
Source: Federation of American Scientists
Quotes: From testimony before US Senate Select Committee on Intelligence - July 31, 2002
As Counsel for Intelligence Policy in the Department of Justice, I run the Office of Intelligence Policy and Review that prepares and presents all applications for electronic surveillance and physical search under the Act to the Foreign Intelligence Surveillance Court (FISA Court or Court). In that capacity, and operating within a system created and modified by Congress, I welcome the chance to provide the views of the Department on the nature and impact of the changes that have been proposed.
S. 2659 as introduced would, for FISA coverage of non-U.S. persons, amend Sections 105(a)(3) and 304(a)(3) of FISA, 50 U.S.C. secs. 1805(a)(3) and 1824(a)(3), to change the standard required for FISA surveillance or search from "probable cause" to "reasonable suspicion." Under S. 2659, in other words, the court could authorize electronic surveillance or physical search of a non-U.S. person upon facts constituting "reasonable suspicions" that (1) the non-U. S. person targeted is an agent of a foreign power, and (2) the facilities, places, premises, or property against which electronic surveillance or search is to be directed is used or about to be used by the target. Conforming changes would be made elsewhere in the sections of FISA. Authority for electronic surveillance or physical search of U.S. persons would remain at the current "probable cause" standard.
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.
The Department's Office of Legal Counsel is analyzing relevant Supreme Court precedent to determine whether a "reasonable suspicion" standard for electronic surveillance and physical searches would, in the FISA context, pass constitutional muster. The issue is not clear cut, and the review process must be thorough because of what is at stake, namely, our ability to conduct investigations that are vital to protecting national security. If we err in our analysis and courts were ultimately to find a "reasonable suspicion" standard unconstitutional, we could potentially put at risk ongoing investigations and prosecutions.
The practical concern involves an assessment of whether the current "probable cause" standard has hamstrung our ability to use FISA surveillance to protect our nation. We have been aggressive in seeking FISA warrants and, thanks to Congress's passage of the USA PATRIOT Act, we have been able to use our expanded FISA tools more effectively to combat terrorist activities. It may not be the case that the probable cause standard has caused any difficulties in our ability to seek the FISA warrants we require, and we will need to engage in a significant review to determine the effect a change in the standard would have on our ongoing operations. If the current standard has not posed an obstacle, then there may be little to gain from the lower standard and, as I previously stated, perhaps much to lose.
I assure [you] that we are moving expeditiously to answer these questions, which, of course, require input from agencies other than the Department of Justice that could be affected by the legislation.
Source: Federation of American Scientists
Quotes: From testimony before US Senate Select Committee on Intelligence - July 31, 2002
As Counsel for Intelligence Policy in the Department of Justice, I run the Office of Intelligence Policy and Review that prepares and presents all applications for electronic surveillance and physical search under the Act to the Foreign Intelligence Surveillance Court (FISA Court or Court). In that capacity, and operating within a system created and modified by Congress, I welcome the chance to provide the views of the Department on the nature and impact of the changes that have been proposed.
S. 2659 as introduced would, for FISA coverage of non-U.S. persons, amend Sections 105(a)(3) and 304(a)(3) of FISA, 50 U.S.C. secs. 1805(a)(3) and 1824(a)(3), to change the standard required for FISA surveillance or search from "probable cause" to "reasonable suspicion." Under S. 2659, in other words, the court could authorize electronic surveillance or physical search of a non-U.S. person upon facts constituting "reasonable suspicions" that (1) the non-U. S. person targeted is an agent of a foreign power, and (2) the facilities, places, premises, or property against which electronic surveillance or search is to be directed is used or about to be used by the target. Conforming changes would be made elsewhere in the sections of FISA. Authority for electronic surveillance or physical search of U.S. persons would remain at the current "probable cause" standard.
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.
The Department's Office of Legal Counsel is analyzing relevant Supreme Court precedent to determine whether a "reasonable suspicion" standard for electronic surveillance and physical searches would, in the FISA context, pass constitutional muster. The issue is not clear cut, and the review process must be thorough because of what is at stake, namely, our ability to conduct investigations that are vital to protecting national security. If we err in our analysis and courts were ultimately to find a "reasonable suspicion" standard unconstitutional, we could potentially put at risk ongoing investigations and prosecutions.
The practical concern involves an assessment of whether the current "probable cause" standard has hamstrung our ability to use FISA surveillance to protect our nation. We have been aggressive in seeking FISA warrants and, thanks to Congress's passage of the USA PATRIOT Act, we have been able to use our expanded FISA tools more effectively to combat terrorist activities. It may not be the case that the probable cause standard has caused any difficulties in our ability to seek the FISA warrants we require, and we will need to engage in a significant review to determine the effect a change in the standard would have on our ongoing operations. If the current standard has not posed an obstacle, then there may be little to gain from the lower standard and, as I previously stated, perhaps much to lose.
I assure [you] that we are moving expeditiously to answer these questions, which, of course, require input from agencies other than the Department of Justice that could be affected by the legislation.
