The Bush Administration has provided its rationale for ordering surveillance without first gaining approval from the FISA court.
As reported by the New York Times, General Michael Hayden, who led the NSA when it began the warrantless wiretaps, said
- The trigger is quicker and a bit softer, but the intrusion into privacy is also limited: only international calls and only those we have a reasonable basis to believe involve Al Qaeda or one of its affiliates. [emphasis added]
The “reasonable basis to believe” standard is lower than the “probable cause” standard employed by the FISA Court. In other words, the Administration believed that the Court’s standard was such that it would fail to authorize some surveillance activities necessary to provide for the nation’s security. Whether this decision is unconstitutional remains to be seen. Leaving the constitutional issue aside, I believe that “reasonable basis to believe,” not “probable cause,” is the proper standard for conducting the War on Terror. The higher the bar, the greater the risk of a terror attack. The FISA legislation should be amended to lower the bar.
[UPDATE. The Washington Post reports Hayden as saying: “Under the FISA statute, NSA cannot put someone on coverage and go ahead and play for 72 hours while it gets a note saying it was okay. The attorney general is the one who approves emergency FISA coverage. And the attorney general’s standard for approving FISA coverage is a body of evidence equal to that which he would present to the court.”]
Hayden defended the program’s constitutionality. He said the lower, “reasonable belief” standard conformed to the wording of the Fourth Amendment, asserting that it does not mention probable cause, but instead forbids “unreasonable” searches and seizures.
- The constitutional standard is reasonable. I am convinced that we are lawful, because what it is we’re doing is reasonable.
Continuing, Hayden averred:
- Let me make this clear. When you’re talking to your daughter at state college, this program cannot intercept your conversations. And when she takes a semester abroad to complete her Arabic studies, this program will not intercept your communications.
The General also asserted that any conversations purely within the United States that are accidentally intercepted are immediately destroyed. [emphasis added]
In a speech delivered this afternoon, the President echoed Hayden. The intercepts were made, he said, on calls involving
- somebody inside the United States and outside the United States, and one of the numbers would be reasonably suspected to be an Al Qaeda link or affiliate. If they’re making a phone call in the United States, it seems like to me we want to know why.
Bush also cited a recent Supreme Court decision, Hamdi v. Rumsfeld, to bolster his argument that bypassing the courts fell within presidential power during a time when the country is fighting terrorism. In that case, the administration asserted that a Congressional resolution passed after the 9/11 attacks authorizing the use of force in tracking down those responsible, gave the president the right to hold American citizens indefinitely without trial as enemy combatants.
The Supreme Court agreed that Mr. Hamdi’s capture was authorized by the Congressional resolution, but rejected the administration’s more sweeping claims. Mr. Bush’s point today was that in its ruling, the court had recognized that the resolution gave the president “additional authority.”
- It means Congress gave me the authority to use necessary force to protect the American people, but it didn’t prescribe the tactics.
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As NSA surveillance against al Qaida – an entity against which the U.S. Congress has authorizeed hostilities and invoked war powers – is not being conducted for law enforcement purposes which makes the probable cause vs reasonable suspicion debate irrelevant.
We did not get court orders to conduct SIGINT against the Vietcong or Nazi organizations and the ability of Congress to limit the President’s power to use
SIGINT against military targets as a war measureis itself Constitutionally suspect.
Tapping those who fall outside of the force resolution OTOH clearly falls under the legislative power to determine.
[...] The context for this proposed legislation, which did not become law, is the speech delivered by General Hayden yesterday, in which he said The trigger is quicker and a bit softer, but the intrusion into privacy is also limited: only international calls and only those we have a reasonable basis to believe involve Al Qaeda or one of its affiliates. [emphasis added] [...]
“We did not get court orders to conduct SIGINT against the Vietcong or Nazi organizations and the ability of Congress to limit the President’s power to use SIGINT against military targets as a war measureis itself Constitutionally suspect.”
But this kind of misses the point, doesn’t it, which is the degree to which surveillance power can extend to Americans suspected of having connections to Al-Qaeda? That’s clearly a 4th amendment issue, since the Constitution doesn’t authorize the government to surveil and search as much as it wants as long as it doesn’t pursue an eventual criminal prosecution.
This goes to the Cass Sunstein-Hugh Hewitt transcript. Sunstein, like any reasonable person, distinguishes between the clear constitutionality of surveilling Al-Qaeda members and the more problematic issue of sweeping any American “suspected” of direct or indirect ties into the net. There’s no indication congress authorized that.