In this post, I argue: 1) General Hayden's comments were a legal argument, not a mistake; and 2) Bush would like to make domestic wiretapping legal by reversing the Katz case from 1967.
1. General Hayden's Comments Weren't a Mistake
Atrios and mcjoan at Dkos have ridiculed General Hayden for saying, "The constitutional standard is `reasonable'" when the plain text of the Fourth Amendment requires "probable cause." Just to be clear, the General isn't making a mere silly statement here because he isn't familiar with the text of the Fourth Amendment. No, it's almost certain that he's correctly parroting the Bush Administration's legal view on the matter.
General Hayden's argument, such as it is, goes back to Katz v. US (1967). According to FindLaw, the Executive Branch then asserted the power to wiretap against domestic subversion and against foreign intelligence operations. First, the Executive Branch based its authority on a theory of "inherent" presidential power. Then, in the Supreme Court it withdrew to the argument that such surveillance was a "reasonable" search and seizure and therefore valid under the Fourth Amendment. The Supreme Court unanimously upheld that compliance with the warrant provisions of the Fourth Amendment was required at least in cases of domestic subversive investigations.
However, Justice White, concurring, sought to preserve for a future case the possibility that in "national security cases" electronic surveillance upon the authorization of the President or the Attorney General could be permissible without prior judicial approval. Justices Douglas and Brennan, concurring, rejected that suggestion.
Therefore, it looks like the Bush Administration has revived the "reasonableness" argument that the Supreme Court rejected in Katz when it was applied to domestic subversion situations. The Administration can properly claim that this argument was not rejected in the foreign intelligence context because the Court did not squarely consider that issue. So, General Hayden's comments, I think, are properly understood to be an accurate reflection of the Bush Administration's legal position.
I'm speculating about why Bush strategists would have voted against the DeWine amendment when one might expect them to be for it. That is, why did Bush have a vested interest in spiking the amendment? My answer is that voting against it may have been part of a law-based backup plan to use in the event that the secret spying program was ever revealed.
Specifically, my argument is that spiking the DeWine amendment preserved a legal argument Bush can use to argue that Katz should be reversed and domestic wiretapping held legal by the courts.
How would Bush maximize his chances of having the Supreme Court reverse Katz?
First, you need justices who believe stare decisis "isn't an inexorable command" like Alito and Roberts. This means they're willing to revist long-standing precedent like Roe and Katz -- and possibly reverse those cases.
Second, you need a substantive reason for the Court to change its mind. The Court will say, "We already decided this issue in 1967. Why are you litigating it again?"
Bush's answer would be that "9/11 changed everything" (i.e. terrorism is an existential threat that didn't exist when Katz was decided so it's appropriate to change the law to fit modern times).
With that opening, the Court could evaluate the Katzian claims of inherent presidential authority that, if adopted, would permit domestic wiretapping.
However, Bush's "times have changed since 1967" argument would have been undermined by a law passed by Congress in 2002. The Court would say, "Even if 9/11 changed everything, you and Congress created a law in 2002 to deal with the changed circumstances, so we're not going to re-visit well-settled precedent."
That's it. I'm just trying to offer one practical reason why the administration would want to argue against a position you'd think it'd take itself - to resolve the apparent contradiction.
2. The DeWine Amendment
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?