Glenn Greenwald has an interesting post on a never-enacted 2002 amendment to FISA that was proposed by Senator DeWine. DeWine's amendment would have changed the law to be at least somewhat similar to the law that would justify the NSA domestic surveillance program. Greenwald's basic take is that DOJ refused to support DeWine's amendment in 2002, which suggests that the Administration could not have thought its NSA domestic surveillance program was necessary.

  I read less into the documents than does Greenwald, and wanted to explain why I'm not inclined at this point to share his conclusion. Greenwald's basic take is that DOJ's refusal to support the DeWine Amendment shows that the Administration did not need the NSA program. He writes:

[A]s of June, 2002 — many months after the FISA bypass program was ordered — the DoJ official who was responsible for overseeing the FISA warrant program was not aware (at least when he submitted this Statement) of any difficulties in obtaining warrants under the FISA "probable cause" standard, and for that reason, the Administration would not even support DeWine's amendment. If - as the Administration is now claiming - they had such significant difficulties obtaining the warrants they wanted for eavesdropping that they had to go outside of FISA, surely Baker - who was in charge of obtaining those warrants - would have been aware of them.

  There are three potential problems with this claim, I think. First, it's not obvious to me that the DOJ official in question, James Baker of the Office of Intelligence Policy and Review(OIPR), would have a complete picture of the NSA's needs. As I understand how the FISA process works, the OIPR is in charge of going to the FISA court. But individual intelligence agencies are not necessarily going to brief OIPR on their intelligence needs and whether they feel existing law is adequate. I would be happy to be corrected on this, but my understanding is that agencies don't give their intelligence to DOJ and ask DOJ to get warrants to do more monitoring; OIPR plays a much narrower role of obtaining warrants when the agencies believe that they have probable cause already. So whether Baker was in the loop about the NSA's broader needs is unclear to me. Perhaps he was, but that's not clear to me based on what we know.

UPDATE: In the comment thread, Marty Lederman (who would know much better than I) helpfully points out that James Baker's testimony to the Senate on the DeWine Amendment would have been internally reviewed and approved within the Executive Branch, including by the Office of the Vice President and the NSA. This doesn't answer whether the testimony showed a lack of need for the NSA surveillance, hints at a tactical decision not to reveal any cards on the issue, or something else, but I think it does indicate that Baker's statement is more than just DOJ's take on the Amendment. Thanks to Marty for the helpful point.

  Second, and relatedly, I don't read Baker's statement as a refusal to support the Amendment in the sense of a rejection of it. As I read Baker's statement, he doesn't take a position: he says that it raises a lot of difficult legal and practical questions, and that DOJ will contuinue to study those questions. If Baker was in fact out of the loop of the NSA's needs, that would make some sense: when he says that "we will need to engage in a significant review to determine the effect a change in the standard would have on our ongoing operations," that may be because having a practical picture of the effect in the standard is a bit beyond IPR's core mission. Greenwald seems to assume that Baker had the complete picture and was refusing to support the Amendment because he thought it wasn't needed, but it's not clear to me that this is accurate.

  I'm not sure about my third point, but I think it's at least worth flagging: the DeWine amendment was somewhat similar to the NSA program, but it wasn't precisely the same thing. For example, the DeWine amendment wouldn't have altered the rules for electronic surveillance under 18 U.S.C. 1801(f)(1), as that provision applies only when a U.S. person is target (and the DeWine amendment sets a different standard only when the person targeted is a non-U.S. person). Perhaps the FISA experts among VC readers can shed more light on this.

  UPDATE: For more on the controversy, see this article in the Washington Post.