Draft Patriot Act Show NSA Spying is Illegal

From Georgia10

The Washington Post reports on draft legislation proposed in 2003 which would have expanded the President's power for warrantless spying:

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. [...]

Some critics of the NSA program said the draft legislation raises questions about recent administration claims that Bush had clear legal authority to order warrantless domestic spying in late 2001 and had no need to go to Congress for explicit approval.

"It's rather damning to their current view that they didn't need legislation," said Timothy H. Edgar, a national security lawyer at the American Civil Liberties Union. "Clearly the lawyers at the Justice Department, or some of them, felt that legislation was needed to allow the government to do what it was doing."

FISA allows the president to conduct warrantless surveillance, without FISA approval, for 15 days after a declaration of war. This draft legislation sought to amend that section and expand its application to authorizations for the use of force, not just formal declarations. It may be that the 2003 draft legislation was a type of pre-emptive measure to protect the program. My suspicion is that the language was ultimately dropped because the administration feared the debate that would have resulted. I suspect the administration balanced the odds. Option #1: Kill the amendment, continue without the cover of law, and hope no one would find out about the program. Option #2: Proceed with the amendment, and hope it passes for legal cover. But if it failed to pass, then the administration would truly be screwed. If Congress rejected this amendment, it would have explicitly rejected the very conduct the administration was engaged in. Perhaps the administration went with Option #1 and rolled the dice.

Some bloggers were emphasizing this shortly after the story broke. For example, I highlighted this amendment in Patriot Act II back on January 1st (link). Back then, I pointed out that the administration sought to include this language in the Patriot Act revival:

The 2001 resolution was not a declaration of war formal enough to trigger Section 1811 and its warrantless searches. Indeed, the dept. argued to expand the section specifically to include "authorizations for use of force".

The draft legislation was included in what's been dubbed "Patriot Act II". You can find a copy of it here. While the Justice Department dismisses the proposed legislation as being drafted by a few low level staffers, it stands as a key indicator of the concerns which permeated the DOJ about this program. Recall that the deputy Attorney General would not sign off on the program. This is a critical fact which must be repeated as often as possible. Doubts about the legality of the program reached the very top of the DOJ.