The following email just came in from the Project on Government Secrecy (FAS)'s director Steven Aftergood (emphases mine):
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 PostNew 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.
"I am going to check into this," a Justice Department official
told Secrecy News on January 27. "Maybe we can clear this
mystery up."
No one has suggested that the FAS version of the Baker statement
is inauthentic.
In fact, an Associated Press story from the day of the hearing
(July 31, 2002) includes this sentence: "Baker said the Justice
Department is still reviewing that [DeWine] proposal and hasn't
decided whether such a change would be needed or if it would be
constitutional."
This sentence, by AP reporter Ken Guggenheim, does not
correspond to anything in the truncated Baker statement or in
his transcribed remarks at the hearing. But it does reflect
the contents of the full version of his statement that was
posted on the FAS web site, indicating that the AP had the same
document.
Citing Mr. Baker's testimony, Sen. Dianne Feinstein asked the
Senate Intelligence Committee to investigate the apparent
contradiction between his remarks and the conduct of the NSA
surveillance program.
"I hope that the Committee's review of this entire matter will
include inquiring whether the failure to brief the Committee as
required by law was compounded by testimony which was at best
misleading, and at worst, false," Sen. Feinstein wrote.
In a second letter, she noted the discrepancy between the Baker
testimony on the FAS web site and the official Committee
version. "I do not know why the two transcripts are different,
and I have asked my staff to investigate."
Both letters from Senator Feinstein are posted here.