2003 Draft Legislation Would Have Covered Eavesdropping

(Washington Post article linked above)

Legislation drafted by Justice Department lawyers in 2003 to strengthen the USA Patriot Act would have provided legal backing for several aspects of the administration's warrantless eavesdropping program. But officials said yesterday that was not the intent.

Most lawmakers and the public were not aware at the time that President Bush had already issued a secret order allowing the National Security Agency to intercept international calls involving U.S. citizens and legal residents.

This, of course, undermines the current Bush admin argument that he already had the power to do so from the 9/11 resolution. Clearly, at least some lawyers in the Justice Department believed a new law needed to be in place to allow the administration to do what it was doing, though the Justice Department is now claiming it was just "junior staffers" that drafted this. Just because they felt like it, I suppose.

The Domestic Security Enhancement Act of 2003 -- dubbed "Patriot II" by critics -- was leaked to the media in February 2003 and soon abandoned by Justice officials, who characterized it at the time as an "early draft" written by staff lawyers. The proposal included several provisions that, in retrospect, would have affected the NSA's program of monitoring telephone calls and e-mails, which was disclosed last month in press reports.

Now I remember "Patriot II," and it was pushed by then Attorney General John Ashcroft. So how can it be argued this was just something "junior staffers" were working on that the higher-ups never knew about?

One provision would have made it clear that the president could order wiretapping without court supervision for 15 days after Congress approved the use of military force, as it did against al Qaeda. Current law allows such spying for 15 days without a judge's approval only when Congress issues a declaration of war.

Justice officials have argued more recently that the two types of declarations are legally equivalent.

Another section of the 2003 proposal would have made it easier for the NSA to obtain lists of telephone calls placed or received by U.S. citizens and residents.

Well, thank God this never reached the floors of Congress, but obviously the Bush administration has claimed even broader wiretapping powers anyway. But it's clear that they knew if anyone ever found out the legal arguments would be shaky to the point that they almost presented a law to cover it. Why didn't they take this Constitutional recourse? The answer is obvious: it might not have passed and everyone would know about it.