Glenn Greenwald discovered that in 2002, Sen. Mike DeWine proposed loosening the standards for domestic surveillance in a significantly more modest way than the President’s controversial program. DeWine’s proposal would have lowered the standard for obtaining a warrant for surveillance of foreigners within the United States from “probable cause” to “reasonable suspicion.” The administration (and Congress) rejected DeWine’s proposal as unnecessary and potentially unconstitutional.
Greenwald’s find has attracted the attention of the media and provoked a response from the administration. Here is Justice Department spokesperson Tasia Scolinos:
The FISA “probable cause” standard is essentially the same as the “reasonable basis” standard used in the terrorist surveillance program. The “reasonable suspicion” standard, which is lower than both of these, is not used in either program.
There are two fundamental problems with this argument:
1. It completely contradicts what the administration said earlier this week. Scolinos claims “reasonable basis” is pretty much the same as “probable cause.” On Monday, Michael Hayden — former NSA director and currently Deputy Director of National Intelligence — said that Bush’s warrantless domestic surveillance program was started precisely because it lowered the standard in a significant way.
2. The legal analysis is wrong. Scolinos falsely claims that “reasonable suspicion” is a “lower” standard than “reasonable basis.” The term “reasonable basis” has no real meaning in 4th Amendment jurisprudence. To the extent that “reasonable basis” does have meaning, it’s used interchangeably with “reasonable suspicion.” For example, in the Supreme Court case of Florida v. J.L., Justice Ginsburg wrote: “The officers, prior to the frisks, had a reasonable basis for suspecting J.L. of engaging in unlawful conduct: The reasonableness of official suspicion must be measured by what the officers knew before they conducted their search.”
The administration’s effort to kill this story isn’t off to a good start.