Not long after the attacks of 9/11, Ohio Sen. Mike DeWine proposed legislation that would have lowered the legal standard for getting warrants to monitor phone calls of foreigners in the United States. The Bush administration opposed the legislation, saying it wasn't "clear" that the lower standard would "pass constitutional muster."
What the administration didn't say: The White House didn't need the legislation because it was already monitoring phone calls by foreigners and by U.S. citizens without bothering to get warrants at all.
The story -- first reported by blogger Glenn Greenwald and then picked up by Washington Post and the Los Angeles Times -- seriously undercuts the administration's arguments about the legality of its warrantless spying program.
The administration has insisted that the president has the power to spy on American citizens without warrants pursuant to his authority as commander in chief, and that Congress somehow implicitly gave him that power when it authorized the use of force against those who attacked the United States on 9/11. But if the administration really thought that it had the authority to monitor the calls of both foreigners and U.S. citizens without getting warrants at all, how could it possibly have also thought that a measure that would have authorized something less -- spying only on foreigners, and even then with warrants approved by a court -- would be constitutionally suspect?
Update: The Bush administration's concern about the constitutionality of DeWine's proposal was set forth in written testimony by James A. Baker, the Department of Justice's counsel for intelligence policy. Or at least it was set out in one version of Baker's testiony. As Sen. Dianne Feinstein's office has just noted, the testimony is set forth as quoted in a version of Baker's presentation archived on the Web site of the Federation of American Scientists, but it's not in the version maintained by the Senate Intelligence Committee. Feinstein's office and FAS are both looking into the question of why two different versions of the same testimony may have been circulated.
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