Probable cause

Probable Cause is Too Hard for the NSA? Too Bad.

The NSA knows it is violating the Fourth Amendment, which expressly forbids general warrants.



Except for the definition and mechanism of proving treason, no area of the Constitution addressing the rights of all persons when the government is pursuing them is more specific than the Fourth Amendment. The linchpin of that specificity is the requirement that the government demonstrate probable cause to a judge as a precondition to the judge issuing a search warrant. The other specific requirement is identity: The government must identify whose property it wishes to search or whose behavior it wishes to monitor, because the Fourth Amendment requires that all warrants specifically describe the place to be searched or the person or thing to be seized.

The principal reason for these requirements is the colonial revulsion over general warrants. A general warrant does not specifically describe the place to be searched or the person or thing to be seized, and it is not based on the probable cause of criminal behavior of the person targeted by the government.

With a general warrant, the government simply gets authority from a judge to search a haystack looking for a needle, and in the process it may disturb and move all the straw it wants. Stated differently, a general warrant permits the government to intrude upon the privacy of persons as to whom it has no probable cause of criminal behavior and without stating what it is looking for.

The Foreign Intelligence Surveillance Act (FISA) court has been issuing general warrants to the National Security Agency (NSA) since 1978, but it was not until last June that we learned that these general warrants have been executed upon the telephone calls, text messages, emails, bank records, utility bills, and credit card bills of all persons in America since 2009.

The constitutional requirement of probable cause is not political fancy; rather, it saves us from tyranny. Probable cause is a quantum of evidence that is sufficient to lead a neutral judge to conclude that the person about whom the evidence has been presented is more likely than not to possess further evidence of criminal behavior, or has more likely than not engaged in criminal behavior that is worthy of the government's use of its investigatory tools such that the government may lawfully and morally invade that person's natural right to privacy.

Last week, Robert S. Litt, general counsel for the Office of the Director of National Intelligence, which runs the NSA, engaged in a curious colloquy with members of the president's Privacy and Civil Liberties Oversight Board. Litt complained that presenting probable cause about individuals to judges and then seeking search warrants from those judges to engage in surveillance of each of those individuals is too difficult.

This is a remarkable admission from the chief lawyer for the nation's spies. He and the 60,000 NSA employees and vendors who have been spying on us have taken oaths to uphold the Constitution. There are no loopholes in their oaths. Each person's oath is to the entire Constitution—whether compliance is easy or difficult. Yet the "too difficult" admission has far-reaching implications.

This must mean that the NSA itself acknowledges that it is seeking and executing general warrants because the warrants the Constitution requires are too difficult to obtain. Stated differently, the NSA knows it is violating the Fourth Amendment to the Constitution, because that amendment expressly forbids general warrants.

In my career as a lawyer, judge, law professor, author, and television commentator, I have heard many excuses for violating the Constitution. I reject all of them when they come from one who has sworn to uphold the Constitution, yet I understand the intellectually honest excuses—like exigent circumstances—when they are based on duty.

The NSA's excuses are not intellectually honest, and they are not based on duty. They are based on laziness.

But there was more than met the eye in Litt's testimony last week. Two days after Litt admitted to the use of general warrants, and while the president was in Europe, the White House leaked to the press its plans to curtail the massive NSA spying. Those plans, which would change only the appearance of what the NSA does but not its substance, have three parts.

The first change relieves the NSA of the need for general warrants to require delivery of massive amounts of data about innocent Americans as to which the NSA has no probable cause, because the second change requires the computer servers and telecoms to preserve their records—instead of the NSA preserving them— and make them "immediately" available to the NSA when it comes calling. And the third is the requirement of a warrant from a FISA judge before the NSA may access that stored data. But because that warrant is not based on probable cause but rather on NSA whim, it is a foregone conclusion that the general warrants for examination, as opposed to delivery, will be granted. The FISA court has granted well in excess of 99 percent of the general warrants the NSA has sought.

Litt must have known what the White House planned to leak when he made his "too difficult" complaint, as it fits nicely with this new scheme. Yet the scheme itself, because it lacks the requirement of probable cause that the Constitution requires, is equally as unconstitutional and morally repugnant as what the NSA has been doing for five years. Moreover, the NSA will not exactly go hat in hand to the computer servers and telecoms once it wishes to hear telephone calls or read emails or credit card bills. Its agents will simply press a few buttons on their computers when they wish, and the data they seek will be made available to them.

These so-called changes should be rejected by Congress, which should overhaul the NSA instead. Hasn't Congress seen enough? The NSA and the CIA spy on the courts, Congress, the military, the police, and everyone in America. This keeps none of us safer. But it does lessen our freedom when those in whose hands we repose the Constitution for safekeeping look the other way. What other freedoms are slipping because Congress, too, thinks upholding the Constitution is too difficult?

NEXT: Brickbat: Silence Is Golden

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  1. The Framers never meant for the Bill of Rights to shackle our protectors’ hands.

    1. They meant it to castrate them?

    2. Then why no tree of life?

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    3. WTF? “Shackle our protectors’ hands”? If by “protectors” you mean police, prosecutors and the NSA, that’s precisely what it was meant to do. The Constitution is a restraining order against the government. Over the last century the federal courts have consistently turned a blind eye to governmental violations of the constitutional restraints, and the FISA court is the worst offender. It should be abolished entirely. There is no place in a free country for secret courts issuing secret ex parte rulings.

  2. Good Morning, NSA! Had your morning coffee yet?

    1. I’d bet the morning shift isn’t on yet, and you’re addressing the late graveyard – assuming they are actually staffed 24/7

      1. Statism never sleeps.

        1. Which would tend to explain its dopy decisions, no?

  3. Only two question marks in the whole article!

    1. I keep waiting for him to drop a few interrobangs on us.

      1. I always thought interrobang sounded like someone asking for sex.

        1. Haven’t you ever seen this?!

        2. Hey, I always thought “Metrosexual” meant somebody who was excited by commuter light rail.

  4. ” What other freedoms are slipping because Congress, too, thinks upholding the Constitution is too difficult?”

    Do you want a list? I can sum it up nicely – all of ’em.

    Once a thief gets away with a little, he comes back for a lot, and he keeps coming back until there is nothing to come back for.

    Until people start going to prison for this it will continue unabated.

    1. I like the idea of these swine going to prison, but let us not overstate the case; people losing their jobs and pensions over this would be sufficient to start a reversal.

      1. Perhaps. Might have to, in addition, ban them from participating in any, um, government-related activity for life.

      2. No, let us not understate the case. These people are engaged in the purposeful attempt to gain leverage over every single citizen and pubic official in the country. They are attempting the construction of a shadow government that is unanswerable to the people, one that is immune to any congressional action that might attempt to rein it in.
        Do not attempt to explain their actions by saying that they are only doing what they think is right.
        Make no mistake: This is an attempt to enact tyranny on a free people; and as such, it is treason. Treason that is deserving of public execution and the re-introduction of the gibbet, in order to discourage future would-be tyrants.

    2. Congress doesn’t give a shit about the constitution so, yeah, all of them are already gone. We are serfs, not citizens. When the words in the constitution are so clear that a kindergartener can understand them but congress ignores, it is sadly amusing that they even bother pretending to care. I mean, if I told a kindergartner “You can have no cookies.” He knows that well, he can’t have any cookies. However when we tell congress that they shall “Make no law” they go ahead and make laws restricting rights in ways that certainly involved them passing laws. Everything from limiting political speech to restricting commercial speech congress has made lots of laws restricting freedom of speech.

      Skipping the whole hassle of a warrant to read our email is infuriating but no less so than all of the other shit the feds have done to trample our rights into the mud.

  5. The NSA calls the information the get public knowledge as the wires and records are actually owned by the phone company. I don’t agree, but the argument is not as simple as Judge Napolitano would make it. Even so, getting the private records from a third party should require probable cause.

  6. NSA and JNLWD are partnering with Virginia State Police and local police implanting people with biochips. Read “A Note on Uberveillance” by M. G. and Katina Michael. it enables Uberveillance. “In its ultimate form, ?berveillance has to do with more than automatic identification technologies that we carry with us. It has to do with under-the-skin technology that is embedded in the body, such as microchip implants; it is that which cuts into the flesh ? a charagma (mark). Think of it as Big Brother on the inside looking out.” Newport News Police and Virginia State Police had a doctor implant me w/o my knowledge and consent with a biochip. A U. S. Attorney for the NSA/DOJ pretended to be my attorney. It enables torture and thought monitoring. They use it as a sensor and pulse energy projectiles at you. I had a heart attack. It enables voice to skull communication. See LRAD white papers or audio spotlight by Holosonics.

  7. Law enforcement believes we will only be safe if they know where we are at all times, what we are doing and what we are thinking! See Safeguards in a World of Ambient Intelligence by Springer page 9. See Mental Health and Terrorism by Amin Gadit. He states, “Of late, there are reports of a new and dreadful invention of weapons of violence that are called Bioelectromagnetic Weapons. According to the description by an Institute of Science in Society, these weapons operate at the speed of light, can kill, torture and enslave without making physical appearance. It further adds that voices and visions, daydreams and nightmares are the most astonishing manifestations of this weapon system, it is also capable of crippling the human subject by limiting his/her normal range of movement, causing acute pain the equivalent of major organ failure or even death and interferes with normal functions of human senses.

  8. It can cause difficulty with breathing and induce seizures besides damage to the tissues and organs. Through this form of terrorism, it is possible to persuade subjects that their mind is being read; their intellectual property is being plundered and can even motivate suicide or murder. Pulsed Energy projectiles (PEPs) are another form of weaponry that is used to paralyze a victim with pain. According to Peter Philips, a scientist from USA, circumstances may soon arrive in which anti-war or human right protestors suddenly feel a burning sensation akin to touching a hot skillet over their entire body. Simultaneously they may hear terrifying nauseating screaming, which while not produced externally, fills their brains with overwhelming disruption. This new invention is dreadful addition to the armamentarium of weapons of abuse and torture. Manifestations of the effects of these occult weapons can mimic mental ill health and add further to the misery of the victims.”

  9. .” See Bio Initiative Report 2012. See Forbes and search Brandon Raub. Law enforcement tases citizens into “excited delirium” (see at nij org) to make them act in ways they normally would not. I believe they are directly responsible for the Virginia Tech massacre. There are 3 reasons to have it implanted 1) mental health, 2) criminal record, and 3) infectious disease. If you don’t meet any of those requirements like me, they’ll falsify your records. All the mass shootings are the work of law enforcement. They want to take away your right to bear arms and make America a police state. People aren’t suddenly going crazy, they’re being tortured. I also believe the biochip to be responsible for PTSD. Read Brian Castner’s book “A Long Walk”. I have the same ambiguous pains, twitches, heart attack, night mares, day mares, gurgling, etc. I never served in the war. What do we have in common? The biochip. Suicide is one way to get relief. Virginia’s suicide rate is higher than the national average and the military suicide rate is unacceptable! You can check your upper right buttock, upper right shoulder. They are just under the skin. I have been in excruciating pain for six years due to corruption in Virginia.

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