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.
What was this proposal? Via Glenn Greenwald:
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.
Since a central claim of the Administration in justifying their warrantless taps was that they wanted to apply a lower standard of proof, and that Congress wasn’t prepared to support such a change, it’s rather unfortunate that their own Justice Department has already dismissed that claim.
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.
He also expressed skepticism that “reasonable suspicion” standard would pass constitutional muster.
So, given that they had access to FISA courts which hardly ever refused a request for a warrant, and given that FISA grants them 72 hours after the taps begin to get that warrant, why didn’t they follow the legal path, preferring the illegal?