'...because Osama may be under your bed sharpening his cutlass.'

They Know They Broke the Law

By William Rivers Pitt
t r u t h o u t

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.





William Rivers Pitt is a New York Times and internationally bestselling author of two books: War on Iraq: What Team Bush Doesn't Want You to Know and The Greatest Sedition Is Silence.