OT - Law professors question Gonzales' view of domestic spying

On Tuesday, U.S. Attorney General Alberto Gonzales said a 15-day grace
period allowing warrantless eavesdropping under the Foreign
Intelligence Surveillance Act demonstrates that Congress knew such
surveillance "would be essential in wartime."

....

During his remarks in a packed law school lecture room at Georgetown,
the attorney general also said the legal standard the administration
uses in deciding whether to carry out surveillance on people with
suspected al-Qaida ties is equivalent to the standard required for
complying with the Fourth Amendment, which bans unreasonable searches
and seizures.

The reasonable basis standard, said Gonzales, "is essentially the
same as the traditional Fourth Amendment probable cause standard."

Stephen Saltzburg, a law professor at George Washington University,
said that Gonzales' comments do not explain why the administration
doesn't go to the Foreign Intelligence Surveillance Court to obtain
warrants.

"If they are using a probable cause standard, they would have no
problem going to the FISA court," said Saltzburg. "The executive
might think there's a reasonable basis. Courts might not agree."

Georgetown University law professor David Cole said the reasonable
basis standard is not equivalent to probable cause.

Moreover, said Cole, Gonzales' comments seem to conflict with those
on Monday by Air Force Gen. Michael Hayden, principal deputy director
of national intelligence.

Hayden said that when weighing whether to proceed with surveillance
under the president's program, "the trigger is quicker and a bit
softer than it is" with FISA.

Justice Department spokeswoman Tasia Scolinos said there is no conflict
between the statements of Gonzales and Hayden and that "it is really
just a matter of speed; as the AG said, the standards are essentially
the same."

In his address, Gonzales said, "I keep hearing, 'Why not FISA?'
Why didn't the president get orders from the FISA court?

"It is imperative for national security that we can detect reliably,
immediately and without delay whenever communications associated with
al-Qaida enter or leave the United States."

Gonzales told his audience: "You may have heard about the provision
of FISA that allows the president to conduct warrantless surveillance
for 15 days following a declaration of war. That provision shows that
Congress knew that warrantless surveillance would be essential in
wartime."

Sharply disagreeing, George Washington University law professor
Jonathan Turley said FISA's purpose "was never to grant warrantless
surveillance for the war."

"While Congress saw some need to loosen the standard in the initial
days of a war, it wanted the president to comply with FISA in carrying
out surveillance in the United States," Turley said.

The attorney general said the program is limited in scope, and he
blamed the news media for suggesting otherwise.

Mr Soul

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