They Know They Broke the Law

They Know They Broke the Law
By William Rivers Pitt
t r u t h o u t | Perspective

Wednesday 25 January 2006

Bush and the boys have taken to the road this week
to defend the indefensible. To wit: spying on American
citizens without a warrant is fine and dandy, because
the President can do whatever he wants, because laws
are meaningless in the main, because Osama may be
under your bed sharpening his cutlass. The road trip
started in Kansas and will wend its way hither and
yon, spreading bad information and flat-out lies at
every whistle-stop.

A defining moment of glittering idiocy took place
on this road trip during an exchange with reporters on
Monday. General Michael Hayden, Principal Deputy
Director of National Intelligence and former director
of the National Security Agency, was tapped to be the
responsible face of the intelligence community for
this junket. The façade didn't hold up for long.

Jonathan Landay, a reporter with Knight-Ridder,
queried General Hayden about the central issue behind
the recent revelations that Bush authorized the
National Security Agency to spy on thousands of
American citizens. "My understanding," began Landay,
"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."

That's as far as Landay got. Here is the remainder
of the exchange:

Gen. Hayden: No, actually - the Fourth Amendment
actually protects all of us against unreasonable
search and seizure. That's what it says.
Landay: But the measure is probable cause, I believe.

Gen. Hayden: The amendment says unreasonable search
and seizure.

Landay: But does it not say probable ---

Gen. Hayden: No. The amendment says unreasonable
search and seizure.

There you have it. The fellow who used to run the
NSA, the agency whose very charter places the Fourth
Amendment in greatest peril simply by dint of its
ability to peek through windows, does not think the
Fourth Amendment requires probable cause. Let's have a
look at the text in question, just for the sake of
clarity:

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.
So there's that, but it gets better. An excellent
writer on the DailyKos blog pointed out another
supreme oddity in the administration's defense of its
actions. Gen. Hayden insisted that the "reasonable
suspicion" standard trumps probable cause when it
comes to the issuance of warrants.

It doesn't. Probable cause is still the law of the
land. 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.

The phrase itself - reasonable suspicion - brings
back a debate that came and went in the summer of
2002. Mike DeWine, Republican Senator from Ohio,
attempted in 2002 to add an amendment to the Patriot
Act that would lower the Foreign Intelligence
Surveillance Act (FISA) warrant standard from probable
cause to "reasonable suspicion." This amendment,
DeWine was specifically careful to note, would only
apply to surveillance of non-citizens. Note that well.


The summer of 2002 saw hearings in Congress on the
DeWine amendment. One witness during these hearings
was none other than James Baker, who was serving at
the time as counsel for intelligence policy at the
Department of Justice, and was head of the Office of
Intelligence Policy and Review. The Office of
Intelligence Policy and Review is the entity that
presents to the FISA court all applications for
surveillance of "foreign powers and their agents." In
other words, Baker was appearing at these hearings as
the main expert on the standard for the issuance of
FISA warrants.

In his formal statement, Baker essentially shot to
pieces the DeWine argument that the warrant standard
needed to be watered down from probable cause to
reasonable suspicion. "The Department of Justice has
been studying Sen. DeWine's proposed legislation,"
said Baker. "Because the proposed change raises both
significant legal and practical issues, the
Administration at this time is not prepared to support
it."

"It may not be the case," continued Baker, "that
the probable cause standard has caused any
difficulties in our ability to seek the FISA warrants
we require, and we will need to engage in a
significant review to determine the effect a change in
the standard would have on our ongoing operations. 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."

Let's break this down.

In the summer of 2002, an attempt was made to
water down the FISA warrant standard from probable
cause to reasonable suspicion. This change would only
apply to non-citizens. James Baker, speaking for the
administration, said such a change was not necessary,
and perhaps dangerous. At this time, however, the Bush
administration had already authorized warrantless
spying on American citizens.

On Monday, Gen. Hayden dug up the "reasonable
suspicion" standard as justification for this
warrantless surveillance of Americans, going so far as
to deny that "probable cause" exists within the Fourth
Amendment. He did so to defend the actions of an
administration that had, in 2002, flatly stated
through Baker that "reasonable suspicion" was an
inappropriate standard even for the surveillance of
non-citizens.

These people are trying to have it both ways. At
one time, they said that "reasonable suspicion" was a
dangerous standard for the warrant-authorized
surveillance of non-citizens, even as they were
conducting non-warranted surveillance of thousands of
actual citizens. This week, in an attempt to crab away
from the legal ramifications of their actions, they
are running back to the dubious justification of
"reasonable suspicion."

The mind boggles. One can imagine George W. Bush
silently thanking God each night for the fact that he
has a Republican congress at his back. Were it
otherwise, the man would be neck-deep in impeachment
hearings. This road trip, and the tortured
convolutions being put forth as justification for
spying on Americans, leads to one inescapable
conclusion: they know what they did was illegal.

http://www.truthout.org/docs_2006/printer_012506Y.shtml