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?

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.

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.

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.

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.

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.

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated [without Warrant], 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.

Note the emphasized word “unreasonable”. Gonzalez reads that to mean the “reasonable” searches do not even require a warrant, much less 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.

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?

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.. . .

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.

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.

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.

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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?