I recently argued that General Hayden was making an actual legal argument, rather than a mistake, during his Fourth Amendment bumbling. With that post in mind, I turn to the DeWine revelations, and speakingcorpse’s question of why, in 2002, the Bush administration would argue against the legal position it now appears to be advancing. There are many possible answers, but I just want to consider one here.

As speakingcorpse suggests, part of the answer “is that they really did want to keep it secret at all costs, clearly because it’s being abused.” Just so. Secrecy was their first line of defense. However, spiking DeWine’s bill may also have been part of a legal strategy the Bush administration was using as a fallback position. That is, maybe the Bush administration argued against their own view in 2002 because it would have been more inconvenient down the line if the program were exposed and challenged in the courts with DeWine’s bill on the books. In other words, one of the administration’s plans might be to legitimize the abuse by going to the Supreme Court, if necessary – something that DeWine’s plan would have made more difficult.

The first point here is that DeWine’s bill didn’t go nearly far enough for the Bush administration. As Glenn Greenwald pointed out, DeWine’s bill would only have lowered the standard for non-US persons, so the standard for US persons would have remained probable cause. Also, DeWine’s amendment wouldn’t have eliminated FISA court oversight. So, the bill was just no good from the Bush administration’s point of view. But why wouldn’t the Bush administration even take DeWine’s half-measure?

One possibility: the timing - post-9/11 - would have gutted a Katz-related argument they otherwise would have had to legitimize domestic spying in court. Recall the breadth of the Executive Branch’s arguments in the history of Katz: it asserted the power to wiretap against domestic subversion and against foreign intelligence operations. There were two theories: 1) a theory of “inherent” presidential power; and 2) a theory that such surveillance was a “reasonable” search and seizure and therefore valid under the Fourth Amendment (aka the Hayden argument). However, the Supreme Court expressly held that compliance with the warrant provisions of the Fourth Amendment was required in cases of domestic subversive investigations. So, fine, they could argue that the foreign intelligence question was still live, ala Justice White, but they’re screwed on the domestic subversion angle, right?

Not necessarily. Yes, there is clear Supreme Court precedent on the domestic spying issue, but stare decisis is “not an inexorable command.” At least Justice Roberts claimed as much during his confirmation hearings. So did Judge Alito. With that wiggle room, Bush could then use the classic argument in this context that “times have changed” since 1967 – i.e. the facts have changed, so the law should too. After all, isn’t it true that “9/11 changed everything”? And given Justice Roberts and Judge Alito’s expansive views of Executive authority, they might even subscribe to the Katz version of “inherent” presidential power.

However, the stare-decisis-isn’t-an-inexorable-command-and-9/11-changed-everything argument to legitimize domestic spying would have vanished if Congress had passed DeWine’s amendment in 2002. Times haven’t changed enough since then. In the end, then, this all might be another hint that Bush is conducting extensive domestic surveillance, that he thinks it’s legal, and that he’s prepared to argue as much in court.

Then again, that’s silly. I mean, “domestic subversion”? It’s not like President Bush would say Democrats are traitors who are giving aid and comfort to the enemy. Right?