They Know They Broke the Law

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Wed, 25 Jan 2006 14:26:57 -0800 (PST)

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 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