Gonzales’s Tortured Logic on NSA Surveillance
posted by Daniel Solove
Attorney General Gozales brought out some new arguments in defense of the warrantless NSA surveillance program. He should have kept these arguments in the bag, as they are flatly wrong. For example, according to the AP:
Gonzales told his audience: “You may have heard about the provision of FISA that allows the president to conduct warrantless surveillance for 15 days following a declaration of war. That provision shows that Congress knew that warrantless surveillance would be essential in wartime.”
Indeed, FISA authroizes electronic surveillance more generally “for a period not to exceed fifteen calendar days following a declaration of war by the Congress.” 50 U.S.C. § 1811. But how does this justify warrantless surveillance that continued far beyond 15 days and that continues to this day? Notwithstanding whether the Authorization to Use Military Force is the equivalent to a declaration of war, this FISA provision indicates that FISA explicitly contemplated the situation the President faced and established a rule — he could engage in warrantless surveillance for 15 days. I have yet to understand how a provision that allows the President to engage in warrantless surveillance for 15 days can be used to justify indefinite warrantless surveillance. Give ‘em a nickel, and they take a dime dollar unlimited amount.
Here’s another gem:
The reasonable basis standard, said Gonzales, “is essentially the same as the traditional Fourth Amendment probable cause standard.”
Nope. The standard is entirely different. The reasonable basis standard is far lower than probable cause. This is not some esoteric fact about Fourth Amendment law, but it is basic knowledge of the law that Gonzales should know.
January 24, 2006 at 6:51 pm
Posted in: Privacy (National Security)
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Responses (51)
MJ - January 25, 2006 at 8:21 am
1. Cherry-picking.
2. This was a briefing for the public, not a legal brief. To a layman, explaining that a “reasonable basis” standard is a lot like the “probable cause” standard gives them a frame of reference that you don’t have to be a lawyer to understand.
3. The Supreme Court reiterated in Pringle v. Maryland, 540 U.S. 366,371 (2003):
“We have stated . . .[t]he substance of all the definitions of probable cause is a reasonable ground for belief . . .”
How is reasonable basis “entirely different” and “far lower” than probable cause?
MJ - January 25, 2006 at 8:54 am
“The ‘reason to believe’ standard first espoused by the Supreme Court in Payton v. New York was not defined in Payton or in subsequent cases. Nor have we explicitly defined the ‘reason to believe’ standard. We now hold that the ‘reason to believe,’ or reasonable belief, standard of Payton and Underwood embodies the same standard of reasonableness inherent in probable cause.” United States v. Gorman, 314 F.3d 1105, 1111 (9th Cir. 2002)
Apparently the 9th Circuit didn’t think that there is much of adifference between the standards, but perhaps they too lack this “basic knowledge of the law.”
Etaoin Shrdlu - January 25, 2006 at 8:57 am
I don’t think MJ’s quotation from Pringle is quite cricket. Here’s the full quotation, 540 U.S. 366, 371, which underscores the probable cause standard’s demand for a particularized basis for thinking a particular person is guilty of a particular crime:
“The probable-cause standard is incapable of precise definition or quantification into percentages because it deals with probabilities and depends on the totality of the circumstances. We have stated, however, that the substance of all the definitions of probable cause is a reasonable ground for belief of guilt, and that the belief of guilt must be particularized with respect to the person to be searched or seized, Ybarra v. Illinois, 444 U.S. 85, 91 (1979).”
Etaoin Shrdlu - January 25, 2006 at 9:00 am
And, of course, the most important difference between the standard the Attorney General describes and the probable cause standard the courts use is the fact that, in the latter instance, it is the independent courts testing the facts by the standard (not a self-serving, unchecked executive officer).
TK - January 25, 2006 at 9:06 am
Sorry, Etaoin, as a legal professional, I know what a self-serving edit of a Supreme Court quote is, and MJ’s quote is not that. I think you’re trying to pick a fight where one doesn’t exist on that point.
Daniel J. Solove - January 25, 2006 at 9:35 am
MJ — Perhaps the news reporter missed something in translation, but it seems fairly obvious from Gonzales’s quote that he was trying to equate the general Fourth Amendment “reasonableness” approach (i.e. special needs, etc.) to probable cause. These standards are quite different.
Anyway, according to the story, Gonzales said that the Administration is using the “reasonable basis” standard, and I take this to mean general reasonableness. Otherwise, if they were applying the probable cause standard, I’m utterly perplexed why they didn’t seek court authorization.
MJ - January 25, 2006 at 9:48 am
Nice tactical retreat, but that’s not what you said.
It’s not at all “obvious” that he was equating the need under the program to have a “reasonable basis” for seeking the information with general “reasonableness.” Rather, he is equating reasonable basis with probable cause which you said was “another gem,” an “entirely different” and “far lower” standard than probable cause, and insinuated that his failure to recognize that showed a lack of “basic knowledge of the law.”
As far as you saying you are “utterly perplexed” at why they didn’t go to the FISA court – no you’re not. The administration has argued 1) The president has inherent constitutional authority to do this without resorting to the FISA court 2) Congress authorized them to by-pass FISA with the UAMF in 2001 and again in 2002 3) A hybrid argument of those two positions.
You understand the arguments; you just don’t agree with them. To say otherwise is vanity cloaked in humility.
TK - January 25, 2006 at 10:02 am
“Otherwise, if they were applying the probable cause standard, I’m utterly perplexed why they didn’t seek court authorization.”
Perhaps to solve the perplexity, I should remind you that those other than the courts use a “probable cause standard.” Law enforcement officers use the probable cause standard all the time without first seeking court authorizations. It’s called arresting someone. Granted, they must seek independent court authorization to arrest someone in their home, which we can all agree has special protections, but if an officer, a member of the executive branch, sees behavior warranting arrest, they can and do apply the probable cause standard without first seeking court authorization.
The probable cause standard is not the sole domain of the courts. Others are not only capable of understanding the standard, they are also reasonably intelligent and even handed as to apply it on a fairly regular basis. And, believe it or not, allowing others to exercise a probable cause standard has not lead to some draconian state or nero-esque legal system where people are arrested simply for offending the senses of their arresting officer. Give a modicum of credit to someone other than the court system.
Daniel J. Solove - January 25, 2006 at 10:03 am
MJ — My point in my last comment was not to re-open the debate about the Administration’s rationales for its power to sidestep the courts. I’ve discussed these at length in other posts. My point was that if the Administration was already meeting the probable cause standard, it makes their decision not to go to the courts more perplexing.
Daniel J. Solove - January 25, 2006 at 10:15 am
TK — Yes, indeed, the police can arrest someone by making a probable cause determination without prior court approval. But I don’t understand why that’s relevant here. I agree with your broader point that probable cause isn’t the sole domain of the courts, but I don’t understand exactly how your argument relates to my position.
As I said in my earlier posts about NSA surveillance, the Fourth Amendment may not address the issue and that the focus should be on FISA. FISA has provisions that allow for surveillance of US citizens with a showing of probable cause. 50 U.S.C. § 1801.
See my posts here and here.
TK - January 25, 2006 at 10:42 am
Then allow me to spell out my point for you. You queried why the executive branch did not go to the courts for authorization under the probable cause standard. My point is that they don’t have to. Executive officers exercise the probable cause standard independently of the courts all the time.
Daniel J. Solove - January 25, 2006 at 11:01 am
TK — Executive officers do exercise probable cause independently of the courts many times, but there are other times when the Fourth Amendment or federal statutory law require court authorization. You certainly can’t mean that the police can bypass warrants in all circumstances, right? In the NSA surveillance, the focus is on a federal statute (FISA), which requires court authorization. The Bush Administration has argued that it had the power to ignore that statute, but if it is also arguing that it could meet the statutory standards, then why didn’t it bother just to follow the statute?
TK - January 25, 2006 at 11:34 am
No, I certainly don’t mean they can bypass the warrant requirement in all circumstances, and its reductio ad absurdum to suggest that was what I meant. Shame on you.
I’m saying they didn’t follow the statute specifically for the reason you stated–they believe they had the authority to bypass the court’s authorization. Notice I’m not expressing a view on whether or not I believe they did, in fact, have that power. I’m simply answering the “perplexing” question you had earlier–which I posit was not actually a question, but rather, as MJ put it: vanity cloaked in humility.
CJ - January 25, 2006 at 3:45 pm
a minor mistatement of law was made through this thread.
reasonableness and probable cause determinations are made all the time by the executive branch, but their validity and constitutionality are determinations only made by the judiciary. Checks and Balances.
duh! - January 25, 2006 at 3:50 pm
TK you are really a legal professional! Wow.
Maybe you could help everyone out by giving instances of unreasonable searches by an executive power.
I am interested in getting a legal professional’s(!) opinion.
AS - January 25, 2006 at 4:03 pm
TK, what do you mean “they don’t have to”? The FISA law says they do, explicitly and clearly. The President simply cannot violate laws passed by Congress at all. If he does, then impeachment is the political/legal remedy and they can fight in the courts to see who is right. If our democracy functioned, that’s what would happen. And for the record, he’d lose that fight, since the court has affirmed the position that war declarations are not blank checks.
Bruce Godfrey - January 25, 2006 at 4:04 pm
Saying that probable cause and reasonable suspicion are essentially the same is misleading. Gonzales’ law professors in criminal procedure would have flunked him for such a ignorant mischaracterization of the law. This is a sub-intern level piece of incompetence.
ColonelTom - January 25, 2006 at 4:12 pm
Quoting MJ:
That’s a lot like saying it’s okay for a salesman to tell you that “leasing” and “owning” a car are the same thing, since it’s a lot easier to explain than an end-of-lease buyout. It’s a blatant misrepresentation, and the AG either (1) knows it and should be fired for lying to the American people, or (2) doesn’t know it and should be fired for not knowing basic principles of criminal law.
John Oswald - January 25, 2006 at 4:19 pm
I keep hearing the word “war” as an excuse. When did Congress declare war? Without formal declaration all those excuses are moot.
When will someone actually challenge these folks by just telling them that we are not at “war”?
TK - January 25, 2006 at 4:27 pm
Good job, all, for disintegrating into ad hominum attacks–especially you, Mr. Duh!. And, by the way, that’s an excellent instance of hiding your identity to avoid any challenge to your opinions.
In no way in response to this post have I expressed an opinion on the legality of Bush’s actions or whether I think this is an “instance[] of unreasonable searches by an executive power.” I have made the relatively narrow point of saying that executive officers exercise a probable cause standard all the time in the context of arrests. It would be naive not to admit there have been instances of unreasonable searches by an executive power.
Mr. AS, you have taken my quote out of context. I meant it in the same way I said this in my next comment: “they believe they had the authority to bypass the court’s authorization. Notice I’m not expressing a view on whether or not I believe they did, in fact, have that power.” I was reiterating the administration’s view without commenting.
Further, Mr. AS, I’m frankly shocked that you can be so certain of such a complex issue. Perhaps its a good thing that someone so ready to summarily dismiss a debate on this issue is not the ultimate finder of fact.
cnl - January 25, 2006 at 4:41 pm
I frankly don’t know what any of you are talking about. I look “reasonabel basis standard” up in westlaw, and I find a standard used for deferential judicial review of administrative actions. It seems to me to be an undefined term that can mean anything.
Like “torture” I guess.
cj - January 25, 2006 at 4:46 pm
maybe this will help:
To be clear on this point, “probable cause” for a search warrant requires that a judge find a substantial basis, or a fair probability, that the search will turn up evidence of a crime. “Reasonable suspicion” is a less severe standard that requires specific and articulable facts that would lead an officer to believe that criminal activity is afoot. In other words, with “reasonable suspicion” as the standard, a warrant would be issued simply on the word of the officer.
MJ - January 25, 2006 at 4:50 pm
ColTom,
Apparently both the Supreme Court and the 9th Circuit should be should be fired for lying to the American people, or should be fired for not knowing basic principles of criminal law, because they both said that a reasonable belief, which sounds an awful lot like a reasonable basis to me, are essentially the same thing as probable cause. See Pringle and Gorman.
Bloviating like yours makes it almost impossible (or at least pointless) to have a serious conversation. Anyone who raises a counter-argument is dismissed as lying or ignorant rather than debating the merit of their analysis.
I’d expect as much from a drunk, on a bar stool at the local pub, but not at a legal/public policy website.
rudgrl - January 25, 2006 at 4:54 pm
Coming into the conversation late and haven
chuck - January 25, 2006 at 4:59 pm
If you read Glenn Greenwald’s blog at http://glenngreenwald.blogspot.com/2006/01/administrations-new-fisa-defense-is.html
you’ll see that the Bush administration believes that there is a substantive difference between “probable cause” and “reasonable suspicion.”
Jeff - January 25, 2006 at 5:14 pm
If Gonzales meant “probably cause” when he kept saying “reasonable basis” I wonder why he didn’t call it “probably cause” instead of “reasonable basis”? It’s not like the public doesn’t have at least a general understanding of the term, and, conveniently, it is the term favored by the 4th Amendment. Obviously, he is trying to conflate two separate concepts and trying to pretend they are the same thing. Since the courts deal in “probable cause,” and the Administration has indicated (in one of their several rationales) that they just couldn’t go to the courts, I think it is reasonable to assume the standard they adopted (whether it is called “reasonable basis” or “educated guess” or “wild-ass supposition”) is something lower than what the courts are looking for. If you believe what the administration apologists say about the program, there is no apparent reason that they could not have complied with FISA. Therefore one must conclude that they are lying, or simply power mad, or both. I am guessing both.
I cannot believe anyone with a legal education is arguing in favor of the administration on this, regardless of political affiliation. If this view of presidential power wins out, we are all going to regret the hell out of it, apologists included.
rudgrl - January 25, 2006 at 5:18 pm
Surely they do for reasonable as they interpret it is lower then probable but the courts have ruled time and again that the level of checks and oversight required by a court is directly linked to the level of intrusion. Being a realist I assume they are data mining everyone until the Administration proves otherwise.
Monday Gen. Hayden refused to even answer, he didn’t obfuscate, he didn’t ignore the question Gen Hayden chose to glare and attempt to stare down a man who had the temerity to ask if the NSA was or has spied on political dissenters. That put a chill up my spine only to be matched by Gen. Haydens outright denial over and over that the 4th even included a probability clause. 1984 stuff.
Seth Hannah - January 25, 2006 at 5:19 pm
The main underlying poin that needs to be made is that if the Bush Administration was genuinely concerned that the Probable Cause standard under FISA was impeding their ability to monitor communications between suspected Al Qaeda asociates outside the country and people within the United States – and that a less stringent standard such as reasonable belief would enable them to monitor these crucial communications – then they had every opportunity to go back to Congress and explain to them what the problem was and ask that FISA be amended. In fact, Republican Senator Mike Dewine introduced such an amendment arguing that the NSA should be able to conduct surveillance on foreigners suspected of Al Qaeda ties without a FISA warrant and the amendment was resoundingly rejected. The Administration even argued against the amendment on the basis that it would likely be unconstitutional. And this was for the surveillance of foreign agents, not American Citizens! Yet this was in 2002, after the Bush Administration had already decided to go around the FISA process with its now revealed secret program. If the Bush administration feels strongly about this, then why not just make the argument to the Congress and the American people on its merits? The only answer I can think of is that they know the public and the Congress would not agree and they know that what they want to do is indeed unconstitutional. So then we are left with the argument that the Bush Administration sincerely believes that the Constitution is hampering its ability to wage the war on terror effectively. That may be a reasonable argument that the public would buy into. My main problem is that they were not given the opportunity to make that choice because the Bush Administration decided to make these changes on their own and in secret. Now that it is out, instead of opening up an honest debate about the merits of their decision, they are trying to make a political case and distorting legal standards and attacking thiein critics in order to defend criticism and avoid impeachment.
rudgrl - January 25, 2006 at 5:36 pm
Impeachment, not realistic. But yes the DoJ’s positions are very simple and very specious. Their main position (if you read the DoJ position paper) is that FISA is
un-Constitutional under Article 2. Sheer hubris.
When Lincoln suspended habeus he came back to Washington and told Congress that he had
un-Constitutionally suspended habeus and if they wanted to override his decision it was in their power. Lincoln understood that what he had done was un-Constitutional and that he ultimately had to defer to Congress. This Administration has no so such understanding of the Law, reverence of the Constitution, or deference to Congress.
Seth Hannah - January 25, 2006 at 5:50 pm
Excellent point about Lincoln,rudgrl. That’s exactly what I was trying to say. If you feel you need to violate the Constitution in order to protect the American People, go ahead and do it. Please do it. Just know that you will have to be held accountable for your actions and face the consequences. My only point in raising impeachment wasn’t to suggest that I think it’s remotely likely. It was to recognize that that is one of the forums in which these kinds of issues are decided. The hubris is making the outlandish claim that you can violate laws with complete impunity. And then assailing your critics for daring to challenge you. What I sincerely want to hear is a concrete example of the Bush Administration going to the FISA court to get approval for surveilling a an international call based on their reasonable standard (or at least the evidence they would present under the reasonable standard)and the court refusing it for failing to live up to the probable cause standard. From what I understand, only 5 FISA requests have been denied of the 30,000 or so that were submitted. Were they rebuffed on these 5 because the evidence conformed to a reasonableness standard rather than a probable cause standard? Was this what provoked their decision to sideline the court? Perhaps they never bothered to go to FISA with requests that they knew beforehand would not be approved because they knew they met the reasonable standard but not probable cause. Perhaps that is the reason for the 30,000 – 5 ratio of approval. I just want to know.
rudgrl - January 25, 2006 at 5:54 pm
and yes I know I mis-spelled habeas.
rudgrl - January 25, 2006 at 6:07 pm
Lots of numbers bantered about I’ve heard 15,000 FISA requests with 5 being denied 3 coming before Bush was even in office. But this isn’t about numbers this is about an Imperial Presidency with a not so bright puppet leading the way. That Bush is being used by neo-cons/unitary theorists becomes more and more clear every day. A Pres. with all cylinders firing could see what’s going on and come to his own defense. Isn’t one of the definitions of insanity to repeat the same behavior and expect a different result? Cheney, Wolfowitz, Rumsfeld, et al, will find or have found cushy lifetime positions somewhere and leave Bush holding the bag for this fiasco.
Soundboy_Jeff - January 25, 2006 at 6:11 pm
Perhaps to solve the perplexity, I should remind you that those other than the courts use a “probable cause standard.” Law enforcement officers use the probable cause standard all the time without first seeking court authorizations. It’s called arresting someone. Granted, they must seek independent court authorization to arrest someone in their home, which we can all agree has special protections, but if an officer, a member of the executive branch, sees behavior warranting arrest, they can and do apply the probable cause standard without first seeking court authorization.
—
So… are all Americans to understand that if they dial a number in a foreign country that might have ties to some unsavory groups, there is probable cause to wiretap their conversations?
what is the probable cause to START the wiretap in the first place? and if you haven’t gotten the evidence in the 72hr timeframe… if you’re the government its okay to keep tapping ‘just in case’?
for how long?
ck - January 25, 2006 at 6:25 pm
This “reasonable basis” seems to me like a red herring developed by the Administration as it tries to backpeddle into justifying its actions.
I don’t think the Administration started this program in order to find evidence to use in brightly lit courtrooms. A lot of this “intelligence” would be problematic, if not inadmissable, in a court of law. That tells me the Administration is not concerned about prosecutions, per se, even of the U.S. citizens it is monitoring.
While I understand the point that the executive branch (law enforcement) may at times act without judicial approval at the front end, there is still judicial oversight through our criminal justice system at the back end. The Administration seems to be circumventing all checks on its power in regards to this program — and this is the troubling part about the entire situation.
Sean - January 25, 2006 at 6:44 pm
We’ve gotten down a bunny trail and missed what’s wrong with Solove’s last couple of sentences. What’s wrong with it is that he decided to take a cheap shot at Gonzalez’s knowledge of the law based only upon a single sentence in an AP excerpt from a longer series of remarks, and worse, apparently based upon a series of assumptions about what Gonzalez must have meant, which is now being reported around the left blogosphere as “Gonzalez doesn’t even know Fourth Amendment law.” If we’re going to speculate on motive, I’d say that’s exactly what was intended. This is too bad, given that Gonzalez’s statement — without reading between the lines as to what he really was saying, or trying to shift the subject to “why did the administration act this way then” — is 100% true.
And quite frankly, regardless of what Solove thought about the Administration’s motive might have been, his statement “[t]he reasonable basis standard is far lower than probable cause” is flat-out false, given that “reasonable basis” is part of the definition of probable cause, as a quick googling of “definition of probable cause” would reveal. “Reasonable basis” is different from “reasonable articulable suspicion” or general “reasonableness” used for special needs searches. This is not some esoteric fact about Fourth Amendment law, but it is basic knowledge of the law that Solove should know. He should fix his post to reflect this.
Seth Hannah - January 25, 2006 at 7:05 pm
This raises the problem of trying to explain these legal arguments to the public. They are being extremely sloppy with their language. When Heyden or Bush are talking about having a reasonable suspicion that one of the parties is an al qaeda, they are clearly trying to reframe the debate from probable cause to reasonable basis. But as Sean stated above, “reasonable articulable suspicion” “general reasonableness” and “reasonable basis” all mean different things but those distinctions are not being made in the public case. So while the AG’s statement is true that reasonable basis is similar to probable cause, he’s creating the false impression that they are not making radical shift in their evaluation of the necessity for obtaining surveillance – minimizing the extent of the shift while executing it.
ColonelTom - January 25, 2006 at 7:53 pm
Can anyone point to a search-and-seizure case that bases its upholding of a search on a “reasonable basis” (NOT “reasonable suspicion” or “probable cause”) standard?
Before this prompts another ad hominem attack, I’m not trying to be a blowhard here. I simply don’t recall ever seeing a stand-alone “reasonable basis” standard in a search-and-seizure case. And I don’t believe that the AG’s and Gen. Hayden’s use of the phrase, rather than the appropriate legal terms in search-and-seizure jurisprudence, is the result of sloppiness.
RJI - January 25, 2006 at 8:17 pm
Apparently, the former head of teh NSA understands there is a difference between “probable cause” and “reasonable”
Otherwise, why would he argue the issue?
QUESTION: Jonathan Landay with Knight Ridder. I’d like to stay on the same issue, and that had to do with the standard by which you use to target your wiretaps. I’m no lawyer, but my understanding is that the Fourth Amendment of the Constitution specifies that you must have probable cause to be able to do a search that does not violate an American’s right against unlawful searches and seizures. Do you use –
GEN. HAYDEN: No, actually — the Fourth Amendment actually protects all of us against unreasonable search and seizure. That’s what it says.
QUESTION: But the measure is probable cause, I believe.
GEN. HAYDEN: The amendment says unreasonable search and seizure.
QUESTION: But does it not say probable –
GEN. HAYDEN: No. The amendment says unreasonable search and seizure.. . .
RJI - January 25, 2006 at 8:23 pm
and… heres the 4th amendment…
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
uh see its WARRANTS that require probable cause… …
hehehe no problem there, i’m not using any warrants, so…..
Feel safer now?
Libby Sosume - January 25, 2006 at 8:39 pm
The ad admistration’s position is that according to the fourth amendement, “reasonable” search and seizure does not require a warrant. It is only when the S&S is “unreasonable” that the fourth amendement requires obtaining a warrant first (based onm probable cause).
Since the administration is only doing “reasonable” wiretapping, there is no problem here. No warrants, and probable cause doesn’t even come up.
Libby Sosume - January 25, 2006 at 8:42 pm
In my previous comment I was only explaining thge administration’s interpretation and rationale – not justifying it.
Libby Sosume - January 25, 2006 at 8:53 pm
In Gonzales’ world, the forth amendment should be interpreted as if the two boldfaced words I’ve inserted below are implied or understood.
Note the emphasized word “unreasonable”. Gonzalez reads that to mean the “reasonable” searches do not even require a warrant, much less probable cause.
g randy primm - January 25, 2006 at 10:25 pm
Ok, let me see if I have this straight: all you lawyer guys are arguing right along the lines that cats like Yoo, Gonzales, Bybee and others would have you do,i.e., splitting hairs, as if it weren’t patently obvious to the reasonable man in the jury (that’s me), having read the Constitution (I have) and coming to the conclusion that you are all blowing hot air.
Probable means that you have some evidence(you got a hot tip from a respected authority, or you smelled beer on his breath) to search. In order to search, you have to have a warrant, obtained from a court (FISA, the local magistrate, whatever)unless you have a smoking gun. Yes? And if you have a smoking gun, you just arrest the perp, and worry about reasonablness later.
U.S. District Judge James Robertson was a member of the FISA star chamber and he quit because he didn’t want any of those NSA wiretaps coming back and miscarrying a trial before him. He’s a Federal judge, and HE thinks the NSA taps were illegal. Comments? By the way, NSA’s ECHELON telecommunications dragnet is not target- specific, it listens to everything. Everything.
g randy primm - January 25, 2006 at 10:31 pm
OOps – the beer on the breath example concerned the case of the underage driver who refused to allow a search of the trunk of his car. After obtaining a warrant, a case of beer was indeed discovered. But you get the picture.
Not all smoking guns are equivalent, but a reasonable person should have little trouble using common sense to resolve the problem, rather than a pack of 500 dollars an hour professors of law attempt to strangle the Constitution.
JT - January 25, 2006 at 11:45 pm
Simplae summary (perhaps oversimplified, I only worked the execution of FISA stuff)
FISA rules allow the government to examine communications of foreigh nationals in the country suspected of illegal activities. You still have to get a warrant (no if’s, and’s or but’s).
FISA rules allow you 15 days to get your paperwork straight, but gives you that 15 day window to start gathering information right away. This is different than the normal rules for warrants that can’t start gathering evidence until the warrant is signed.
In any case, the warrant will dictate what is to be gathered, and for how long (start/end dates).
There’s absolutely no rule or law that says you can just gather information on US citizens without a warrant. As a matter of fact, the 4th amendment pretty much says the opposite.
ben - January 25, 2006 at 11:51 pm
It’s simple really. FISA was created EXPLICITLY to address this very situation. FISA is LAW. The executive branch MUST follow the law. That’s how the fine folks that wrote the constitution intended to prevent our country becoming a monarchy. When Bush went on television and claimed he didn’t have to follow FISA, that should have been the cue for congress to begin impeachment hearings, which would have BROUGHT THIS TO THE JUDICIAL BRANCH and gotten the issue resolved.
Since the majority in congress has decided to sit on their hands and play partisan politics, we are witnessing the destruction of our constitutional system. Somehow, it was easier in 1997 to follow the constitution when it was about lying under oath about a blow job, in large part because congress and the executive branch were controlled by DIFFERENT PARTIES.
So what this all boils down to is in the post-cold-war era, having a two party political system will mean the disintegration of the constitution. Without the pressure of M.A.D. in the race against the soviets, there is little pressure on any party which controls both the congress and the executive branch to keep the consitution working. If we had, say, three parties, there might be the opportunity for coalitions to form in congress to drive out a power-mad executive branch. Unfortunately, this is the Pepsi/Coke country where sugar water still costs $.75 a can because duopolies present a nice illusion of competition.
America. Gotta love it.
hovanes - January 26, 2006 at 12:09 am
I must admit I am astounded by these postings. To a person not in the country and reasonably dissociated from the discussions, reading through the postings and understanding what is going on is amazing. I lived in the US through hi school, studied the Constitution and the American system, and lived the experience of America as the bastion of liberty and rights. The truth that is being ignored is that your president is not following the law. I don’t care how you parse the details. The large picture is that Bush did not follow the law and is lying about it. All this parsing about who is right or who is wrong with details ignores the fact that this man is spying on American citizens; lots of them. The America I knew seems to be dissolving; the supporters of the opressed, the voice for the underdog; the support for the right to speak and think. This all seems to be going away. I am glad I lilve in New Zealand, because you are looking like facists to me. I pray, although I am not religious, that your citizens will see how your country has been taken over, how the discourse has degenerated, how the rights of all citizens are being slowly removed. Good luck to you, because the America we knew is quickly vanishing.
hovanes - January 26, 2006 at 12:16 am
Just a short added note after reading my own post. Sorry about the miss-pellings; and ARE YOU PEOPLE NUTS? What is going wrong with you? Have you lost it?
georgia10 - January 26, 2006 at 8:04 am
I think it’s pretty clear that reasonable belief, first and foremost, is NOT equal to reasonable suspicion. Lots of case law to support that.
Now, the Supreme Court has defined reasonable belief as somewhat lower than probable cause. They were referring to the criminal standard for probable cause.
The FISA probable cause standard is somewhat lower. So “reasonable belief” and “probable cause” under FISA are much closer.
That said, as I wrote earlier, this latest excuse just gets the administration in more trouble. All along, Bush and his supporters have claimed bypassing FISA was necessary because, in part, the standard was too high to obtain a warrant. Yet now, they claim they’re applying basically the same standard?
It doesn’t make sense.
Jeff - January 26, 2006 at 11:46 am
The fact that this administration’s own Justice Department argued AGAINST the DeWine bill (which would have lowered the threshold for FISA warrants from probable cause to reasonable suspicion, but would have only applied to non-US persons) based on (1) there being no need to lower the bar because the Patriot Act was so great, and (2) lowering the bar would likely be unconstitutional, is incredibly damning to their case now. They had a chance to get the bar lowered, and they argued against it, ON PRECISELY THE SAME GROUNDS that critics of the program now use. Of course, Justice was arguing against it in 2002, after the administration was already doing this crap. You cannot trust this administration on anything, period.
Just thinkin - January 26, 2006 at 2:30 pm
If an organization or country or entity declares war on the U.S., and actually attacks the U.S., do we have to actually declare WAR for us to be at WAR? And do we have to actually declare WAR for the president to then have the “inherent” responsibility to protect Americans, when WAR was declared against us? If it is reasonable to assume the president has the “inherent” responsibility, then does he have to conduct himself with his hands tied behind his back, or can he assert that he does not? It maybe that he does not want FISA to be ammended because to continue to ammend and update or shape FISA to support what he wants to do, is to admit he does have his hands “tied”.
If you listen to everything (calls) coming in, are you gathering information on a specific person? or just listening for keywords? If you are not gathering info on specific persons, has the law been violated?
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