Tuesday, January 24, 2006

What Constitution? We're being "reasonable"

Here we are again, visiting the land of "Whaaat??". . . this time with NSA's General Hayden as our guide.

Apparently, now if you break the law and you're the American government, intent is everything.

I'm working on Vince, my lawyer, to practice the following line:

"Sure, your honor. She broke the law. But look into her eyes. . .she didn't mean it, and plus you know, she looks so innocent and trustworthy. . ."

Think it'll work?

General Hayden, former director of NSA until 2005, hopes so. Speaking to a Knight-Ridder reporter about the NSA's spying program he said this:

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.

QUESTION: But the --

GEN. HAYDEN: 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 --

QUESTION: The court standard, the legal standard --

GEN. HAYDEN: -- unreasonable search and seizure.

QUESTION: The legal standard is probable cause, General. You used the terms just a few minutes ago, "We reasonably believe." And a FISA court, my understanding is, would not give you a warrant if you went before them and say "we reasonably believe"; you have to go to the FISA court, or the attorney general has to go to the FISA court and say, "we have probable cause." And so what many people believe -- and I'd like you to respond to this -- is that what you've actually done is crafted a detour around the FISA court by creating a new standard of "reasonably believe" in place in probable cause because the FISA court will not give you a warrant based on reasonable belief, you have to show probable cause. Could you respond to that, please?

GEN. HAYDEN: Sure. I didn't craft the authorization. I am responding to a lawful order. All right? The attorney general has averred to the lawfulness of the order.

Just to be very clear -- and believe me, if there's any amendment to the Constitution that employees of the National Security Agency are familiar with, it's the Fourth. And it is a reasonableness standard in the Fourth Amendment. And so what you've raised to me -- and I'm not a lawyer, and don't want to become one -- what you've raised to me is, in terms of quoting the Fourth Amendment, is an issue of the Constitution. The constitutional standard is "reasonable." And we believe -- I am convinced that we are lawful because what it is we're doing is reasonable.

He also said:

Hayden said he wants to ensure that the NSA isn't viewed as trampling on the privacy rights of U.S. citizens. He said the nature of the NSA's mission requires it to be a secretive agency. But he added that the agency is trying to make certain that Americans know it follows the law while enhancing U.S. liberty and security.

"Could there be abuses? Of course, there could, but I am looking you and the American people in the eye and saying there are not," Hayden said.

Poor General Hayden. Must've missed social studies and civics classes too often when he was a kid.

The Fourth Amendment, in clear, unambiguous terms, states probable cause as the reason for search and seizure. Not -- trust the government not to abuse its power --- but probable cause. Without probable cause, FISA will not issue a warrant. Without a warrant (even retroactively) it's illegal to spy on American citizens. So why didn't Bush go to FISA, again?

But General Hayden apparently doesn't understand the difference between legal and illegal procedures. He believes there are two ways, the uh, traditional, Constitutional legal process - through FISA - and a second nebulous path, apparently listed somewhere in the really, really fine print of the Constitution: the "president's authorization."

You mean you never heard of the "president's authorization to spy on Americans without a warrant" in the Constitution?

Well, sheesh. Don't expect anyone else to do the legwork for ya! Go look it up yourself and when you find it, I'll give you $1,000,000 for your trouble.

Hayden thinks it's reasonable:

In the instances where this program applies, FISA does not give us the operational effect that the authorities that the president has given us give us. Look. I can't -- and I understand it's going to be an incomplete answer, and I can't give you all the fine print as to why, but let me just kind of reverse the answer just a bit. If FISA worked just as well, why wouldn't I use FISA? To save typing? No. There is an operational impact here, and I have two paths in front of me, both of them lawful, one FISA, one the presidential -- the president's authorization. And we go down this path because our operational judgment is it is much more effective. So we do it for that reason. I think I've got -- I think I've covered all the ones you raised.

So...I wonder if this new "nuance" will work for us, if we break the law?

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