1/29/2006

Daily Kos: A Reasonable Suspicion of Illegality

While taking about Bush spying on us, General Hayden made a remark that the 4th Amendment didn't include a probable cause standard ... The admission is very damning - even Bushies admit that a reasonable suspicion standard with respect to non-U.S. citizens is probably unconstitutional - Yet the administration now applies that same unconstitutional standard to US citizens?

A Reasonable Suspicion of Illegality
by georgia10
Tue Jan 24, 2006 at 04:12:25 PM PDT

The first thing that struck me when General Hayden made the ignorant observation that the Fourth Amendment didn't include a probable cause standard was that someone needed to tattoo the Bill of Rights on his chest, backwards, so he could read it every time he looked in the mirror in the morning. The second thing that struck me about his insistence that a "reasonable suspicion" standard prevails over probable cause for the spying program was that this Administration and the Congress already rejected a reasonable suspicion standard.

In 2002, Republican Senator DeWine introduced an amendment to the PATRIOT ACT that would have lowered the FISA warrant standard for non-U.S. citizens from probable cause to "reasonable suspicion." The DeWine amendment, S. 2659, was rejected in Committee. Glenn Greenwald has a must-read, excellent post on the DeWine amendment here. DeWine's amendment would have lowered the standard ONLY for non-U.S. citizens. The administration expressed serious misgiving about the constitutionality of DeWine's amendment. In the end, his amendment did not pass.

The admission that Bush's spying program uses a "reasonable suspicion" standard rather than a "probable cause" standard is explosive and damning. Why? Because the Bush administration knew--indeed, took the position--that a reasonable suspicion standard with respect to non-U.S. citizens was probably unconstitutional. Yet the administration now applies that same unconstitutional standard to United States citizens?

In the summer of 2002--well after Bush's spying program was already secretly implemented- the Senate Select Committee on Intelligence held a hearing on the DeWine amendment. (Hearing Report PDF) What transpired at that hearing proves that the Bush administration (a) knew that wiretaps of United States citizens are, pursuant to the Constitution, always subject to a probable cause standard; and (b) Congress explicitly rejected a lower standard for non-U.S. citizens.

DeWine himself limited his amendment to apply only to non-U.S. citizens, recognizing that "we must be cautious not to endorse an overly permissive use of the surveillance powers of FISA." The Committee heard testimony from the administration's top lawyers, and from top legal scholars in the field of eavesdropping and criminal law. ...
Daily Kos: A Reasonable Suspicion of Illegality

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