Because they know it's not. They knew the expanded authority was unconstitutional and they said so in 2002. Media Matters
fleshes this out with information provided by blogger Glenn Greenwald:
Mike DeWine (r) introduced legislation on June 20, 2002, proposing "to modify the standard of proof for issuance" of FISA warrants from "probable cause to reasonable suspicion" in the case of warrants to conduct surveillance on "non-U.S. persons." From the Congressional Record:
S. 2659. A bill to amend the Foreign Intelligence Surveillance Act of 1978 to modify the standard of proof for issuance of orders regarding non-United States persons from probable cause to reasonable suspicion; to the Select Committee on Intelligence.The Justice Department statement:
. . . when the Bush administration was asked to apprise Congress of its position on the DeWine bill, it issued a July 31, 2002,
http://www.fas.org/irp/congress/2002_hr/073102baker.html">statement from James A. Baker, the Justice Department lawyer who oversees the Department's Office of Intelligence Policy and Review including "all applications for electronic surveillance." In that statement, the Justice Department
opposed the DeWine bill over concern that the proposed change might not "pass constitutional muster" and expressed doubt that such a change was necessary: "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."
. . . the Bush administration's decision to issue the statement opposing the DeWine legislation indicates that the Department of Justice "was concerned that it might be unconstitutional to eavesdrop with a lower standard than probable cause even as the Administration was doing exactly that."The fact that the bill would have limited the application of the lower standard to non-U.S. persons is significant. Whatever constitutional concerns DOJ had regarding the bill's application to non-U.S. persons presumably would have been compounded had the bill proposed to do what the Bush NSA program is reportedly doing: employing a lower standard, not for non-U.S. persons, but for U.S. persons -- that is, citizens and legal residents, entitled to the fullest protections under the Constitution.From the Justice Department
http://www.fas.org/irp/congress/2002_hr/073102baker.html">statement:
"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.Bottom line: Despite the fact that the DeWine bill was less expansive than what Bush was already doing in secret, the Congress rejected it because it lowered the standard for spying on Americans. The Bush Justice Dept.'s opposition to that unconstitutional expansion undermines Bush's claim that FISA was holding them up from catching terrorists, or that Congress had approved what they did in any shape or form.
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