This is true investigative journalism.
From Glenn Greenwald:
In June, 2002, Republican Sen. Michael DeWine of Ohio introduced legislation (S. 2659) which would have eliminated the exact barrier to FISA which Gen. Hayden yesterday said is what necessitated the Administration bypassing FISA. Specifically, DeWine’s legislation proposed: 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. . . .In other words, DeWine’s bill, had it become law, would have eliminated the “probable cause” barrier (at least for non-U.S. persons) which the Administration is now pointing to as the reason why it had to circumvent FISA
General Hayden is going around touting that the â€œprobable causeâ€ barrier necessitated that the administration skirt FISA and the law. As it turns out, a Democratic tried to give them that power in 2002 and they declined it in an official statement saying the Patriot Act had given them enough power:
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. Again, we are grateful for the tools Congress provided us last fall for the fight against terrorism. Thank you.
Even the WaPo has picked this up.