Secrecy News, the cool new blog from the Federation of American Scientists Project on Government Secrecy, has a great tidbit for the tinfoil-deprived:
The Mystery of the Two James Baker Statements: In a 2002 statement presented to the Senate Intelligence Committee, James A. Baker of the Justice Department Office of Intelligence Policy and Review questioned the constitutionality and the necessity of a proposal by Senator Mike DeWine to lower the legal threshold for domestic intelligence surveillance of non-U.S. persons from “probable cause” to “reasonable suspicion.”
But for yet unknown reasons, Mr. Baker’s remarkable statement is found in two distinct versions.
“If we err in our analysis and courts were ultimately to find a ‘reasonable suspicion’ standard unconstitutional, we could potentially put at risk ongoing investigations and prosecutions,” Mr. Baker said in the more expansive version of his statement.
Moreover, “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.”
Yet even as Mr. Baker was expressing concerns about lowering the probable cause threshold, the government was doing precisely that in the NSA domestic surveillance activity.
Baker’s testimony was highlighted last week by blogger Glenn Greenwald and cited in the Washington Post and the New York Times.
Strangely, however, the testimony in which Mr. Baker presented those concerns cannot be found anywhere on the public record except for the Federation of American Scientists web site.
The testimony that is posted on the Senate Intelligence Committee web site does not contain the three paragraphs in which Mr. Baker questions the propriety of going beyond the probable cause standard as proposed by Senator DeWine.
Likewise, only the truncated version of Mr. Baker’s testimony was archived in the Nexis database and published by the Government Printing Office in its printed hearing record.
Pretty spooky, eh?
I think I’ve spotted another discrepancy. The text posted on the Senate site reads, “One simple but important change that Congress made was to lengthen the time period for us to bring to court applications in support of Attorney General-authorized emergency FISAs. This modification has allowed us to make full and effective use of FISA’s pre-existing emergency provisions to ensure that the government acts swiftly to respond to terrorist threats. ” Based on last Friday’s DOJ memo it should obviously read, “One simple but important change that Congress made was to lengthen the time period for us to bring to court applications in support of Attorney General-authorized emergency FISAs. Since FISA is an unconstitutional infringement on the President’s powers it has zero effect but thanks for the gesture anyway. Furthermore, the Authorization for the Use of Military Force trumps any other laws you may have passed, even if they would have been constitutional. No take backs! And, in conclusion, you can all suck it. Any questions? Psyche!!”