Probable Cause? Probably Not.


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.