Probable Cause? Probably Not.

Jacob Sullum | May 18, 2006

Testifying before the Senate Intelligence Committee today, Gen. Michael Hayden, President Bush's choice to replace Porter Goss as director of the CIA, said the warrantless domestic surveillance program he oversaw at the National Security Agency is based on a "probable cause standard," albeit one applied exclusively by the executive branch. In other words, NSA supervisors authorize surveillance of phone calls and e-mail between people in the United States and people in other countries only when they think there is probable cause to believe one of the parties to the communication is an agent of Al Qaeda or a related group. That means they are applying the same standard that would be used by the Foreign Intelligence Surveillance Court if the NSA decided to obey the Foreign Intelligence Surveillance Act (FISA) and seek a warrant.

This account seems inconsistent with previous statements on the subject by Hayden and Attorney General Alberto Gonzales. At a press conference in December, Hayden said the "trigger" for NSA surveillance was not only "quicker" but "softer" than the trigger for a FISA warrant. At the same press conference, Gonzales said the NSA was using a "reasonable basis" standard, which presumably is equivalent to "reasonable suspicion," a weaker standard than probable cause.

Comments

|5.18.06 @ 3:55PM|#

Doctor Duck sez:

"We don't need a warrant. We have a war rant."

|5.18.06 @ 4:57PM|#

What are these Czechs and valances of which you speak?

|5.18.06 @ 5:21PM|#

They should just be honest: it is a standard that exists in your heart, when you just know somebody is bad its okay to use all kinds of methods to find out how bad they really are.

|5.18.06 @ 6:56PM|#

Can anyone give an update in the NSA data trolling business that was reported on in USA Today? The companies that were implicated are now saying they didn't give data to the NSA, what's the deal?
Is there any truth to be found here or are the baby bells in CYA mode?
AARGH I wish everyone with power would just stop lying for like 15 minutes and throw me a bone or two.

John M. Joy|5.18.06 @ 7:28PM|#

Randolph:

Fat chance. Short answer, of course, is that EVERYONE's lying. And, since any attempt to bring out the truth (through the courts) will be met with a "national security" quash... they'll keep on doing so.

Oh, and it's a safe bet, of course, that the "we've been reading the envelopes but not the contents" canard is exactly that.

(That I'm - probably, let's see - only poster #5 in this thread implies that this fact is understood by the better part of the H&R Peanut Gallery.)

JMJ

|5.18.06 @ 7:29PM|#

I am ready to forgive Clinton for attempting to redefine "is".

This adminstration has translated all of the terms we used to think we understood into this bizarre looking glass language where the phrase "When the Decider so chooses..." gets prefixed to all of the previously solid legal definitions to form a new bizarro lexicon which has been stripped of all its original authority and is now freely transliterated at the will of the executive.

Clinton just tried to redefine what kind of sex he was having and when he was having it.

Bush seems to be attempting to cheapen the definition of what it means to be an American.

|5.18.06 @ 8:55PM|#

JMJ,
I know. I was hoping that maybe there was SOME news about what seems to be a pretty big deal. Somehow the NSA trolling program got wrapped up in/swept under the rug by the Hayden nomination.
How did the story change from (after 2 days of phone companies copping to the fact that they gave over records) to "phone companies say they didn't give over records! Darn librul media endangering national security again!"
I'm not quite a tin-foiler yet, but I have been experimenting with Reynolds Wrap headwear for my beloved little pug... they'll take me before they take him.

|5.18.06 @ 9:29PM|#

Randolph Carter,

Your dilemma is easily resolved when you realize one small truth: The Phone Company was never broken up.

To understand the implications of this, just watch The President's Analyst and that WKRP with the bomb at the antenna site.

I must move to another location now.

|5.18.06 @ 11:18PM|#

RandyAyn, I couldn't agree more.

I heard that one of the most brutal units in the new (as in post-Saddam, as in American-installed) Iraqi security forces was named the "Freedom Brigade."

I know that Orwell comparisons are trite, but if they can call a death squad the "Freedom Brigade" then what's to stop them from saying that freedom is slavery and that the torture chambers are run by the Ministry of Love? What's to stop them from renaming the IRS the Ministry of Plenty?

|5.18.06 @ 11:27PM|#

the land of the safe, and the home of the scared...

I have nothing to fear though, because I'm not doing anything wrong.

|5.19.06 @ 7:30AM|#

That's what you think.

|5.19.06 @ 9:39AM|#

What's to stop them from renaming the IRS the Ministry of Plenty?

Our righteous anger, thoreau, our righteous anger.

James Anderson Merritt|5.19.06 @ 1:59PM|#

"Your dilemma is easily resolved when you realize one small truth: The Phone Company was never broken up."

It has been fascinating to watch the slow-motion breakup and reassembly of the old AT&T, these past couple of decades, like the Death Star (their logo) putting itself back together. Is it just me, or does anyone else get a shiver whenever they read or hear the new corporate slogan? "Your world, delivered." (The "into our hands" part was obviously trimmed off the end for brevity's sake.)

Tell me again: What, exactly, did the "breakup" of the old AT&T accomplish?

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