A View From The Handbasket

Thursday, January 26, 2006
It depends on what your definition of "reasonable" is
Posted by neros_fiddle at 9:33 AM
I guess the talking points haven't been finalized on this one yet. The administration is beginning to sound like a four-year-old with cookie crumbs all over his face explaining that he hasn't been eating cookies. (Or a President explaining that a blow job isn't really "sex." But I digress -- surely a blow job can't be as serious as unconstitutional domestic spying programs. I mean, no one would get impeached over a blow job, but surely they would over illegal wiretaps. Right?)

Anyway, you'll recall Gen. Hayden, former NSA head, insisted that warrantless domestic spying was cool because it met a standard of "reasonableness" (scroll down for full post with link):

Just to be very clear -- and believe me, if there's any amendment to the Constitution that employees of the National Security Agency are familiar with, it's the Fourth. And it is a reasonableness standard in the Fourth Amendment. And so what you've raised to me -- and I'm not a lawyer, and don't want to become one -- what you've raised to me is, in terms of quoting the Fourth Amendment, is an issue of the Constitution. The constitutional standard is "reasonable." And we believe -- I am convinced that we are lawful because what it is we're doing is reasonable.

Since then, we've learned about the proposed DeWine amendment in 2002, which would have lowered the standard for terror surveillance warrants from "probable cause" to "reasonable suspicion," and which the Justice Department passed on. (Again, scroll down for full details and links.) The Washington Post asked the Justice Department to explain why they didn't like that amendment, in light of their defense of the NSA's activities.

"The FISA 'probable cause' standard is essentially the same as the 'reasonable basis' standard used in the terrorist surveillance program," said spokeswoman Tasia Scolinos, using the term for the NSA program the White House has adopted. "The 'reasonable suspicion' standard, which is lower than both of these, is not used in either program."

So, some reasonable suspicions are evidently more reasonable than others. And the NSA program uses a standard equivalent to "probable cause," which is the standard FISA uses. So they could get a FISA warrant.

But they don't want to.

For some reason.

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