You Want Constitutional Ignorance?

Now quit cherry picking! The general said "unreasonable search and seizure". Which is what is part of the 4th amendment. He knew his constitution.

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

And btw....the guys info is incorrect.

QUESTION: The legal standard is probable cause, General. You used the terms just a few minutes ago, "We reasonably believe." And a FISA court, my understanding is, would not give you a warrant if you went before them and say "we reasonably believe"; you have to go to the FISA court, or the attorney general has to go to the FISA court and say, "we have probable cause."

This is incorrect. If they were to go to a FISA court and say "We have reason to believe that this person is engaging in terrorist activities". Guess what? They'll get their warrant!

And btw....the guys info is incorrect.

Except for the part where he denies that it says probable cause;

QUESTION: But does it not say probable --

GEN. HAYDEN: No. The amendment says --

This is incorrect. If they were to go to a FISA court and say "We have reason to believe that this person is engaging in terrorist activities". Guess what? They'll get their warrant!

I don't think "have reason to believe" appears anywhere in the FISA law. But if what you say is true, then why NOT get warrants instead of doing it the way they're doing it?

And btw....the guys info is incorrect. Except for the part where he denies that it says probable cause; QUESTION: But does it not say probable -- GEN. HAYDEN: No. The amendment says -- This is incorrect. If they were to go to a FISA court and say "We have reason to believe that this person is engaging in terrorist activities". Guess what? They'll get their warrant! I don't think "have reason to believe" appears anywhere in the FISA law. But if what you say is true, then why NOT get warrants instead of doing it the way they're doing it?

It's called "time constraints"! Usually when they get a tip like that they do not have the luxury of putzing around!

And sorry to say that the legal standard is not "just" probable cause when it comes to getting a warrant. So the questioner does not have all the info. And of course no one is commenting on how hard this "questioner" is pushing the general's buttons! There is definitly a hostility coming from him that shows in the way he is cutting the general off.

GEN. HAYDEN: No, actually -- the Fourth Amendment actually protects all of us against unreasonable search and seizure. QUESTION: But the -- GEN. HAYDEN: That's what it says. QUESTION: But the measure is probable cause, I believe. GEN. HAYDEN: The amendment says unreasonable search and seizure. QUESTION: But does it not say probable -- GEN. HAYDEN: No. The amendment says -- cut off QUESTION: The court standard, the legal standard -- but then the general gives as good a he gets. GEN. HAYDEN: -- unreasonable search and seizure.

It's called "time constraints"! Usually when they get a tip like that they do not have the luxury of putzing around!

What time constraints? They don't have to wait for the judge to rule before they act, they just have to go back and show probable cause to get the warrant after the fact. That's one of the points of having the FISA court, so they don't have to wait.

And sorry to say that the legal standard is not "just" probable cause when it comes to getting a warrant. So the questioner does not have all the info.

What is the legal standard in cases like this then, if not probable cause? A link to a source would be great too.

And of course no one is commenting on how hard this "questioner" is pushing the general's buttons! There is definitly a hostility coming from him that shows in the way he is cutting the general off.

It's pretty clear that Hayden cut him off twice right from the start, not the other way around.

I'm wondering something here. If so many democrat Senators and Congressmembers had such a problem with this back when Prs. Bush let them know of the order... why didn't ANY of them bring those concerns up with the FISA court?

It seems obvious what the government is doing. They don't have probable cause to begin with. They're just examining all the signals in specific areas in search of something that looks a little suspicious. That's why they have to circumvent FISA.

Hayden was all over the news yesterday defending the policy. He's going to look like a fool during the hearings when they grill him over this.

It seems obvious what the government is doing. They don't have probable cause to begin with. They're just examining all the signals in specific areas in search of something that looks a little suspicious. That's why they have to circumvent FISA

Shows what you do NOT know! And you obviously did NOT listen to what Hayden had to say "either"! They ONLY look at calls that originate from or are going to contries that have terrorist ties!

Except for the part where he denies that it says probable cause; QUESTION: But does it not say probable -- GEN. HAYDEN: No. The amendment says --

he got you. While the Amendment does contain the clause of "probable cause", he was never asked if that was part of the 4th amendment. And the General is correct. The Interviewer was the doofus here.

BTW: Just curious. From what state was Hayden elected to congress?

he got you. While the Amendment does contain the clause of "probable cause", he was never asked if that was part of the 4th amendment. And the General is correct. The Interviewer was the doofus here.

It's really sad that a person like yourself, who considers himself "well read" and a patriot would read that sentence though red (state) colored glasses. The General is right, the 4th amendment does protect us against unreasonable search and seizure. But what is it that does that protecting?

Probable Cause

BTW: Just curious. From what state was Hayden elected to congress?

Who said anything about Hayden being elected to congress?

And sorry to say that the legal standard is not "just" probable cause when it comes to getting a warrant. So the questioner does not have all the info.

Still waiting on your response for this one regarding the legal standard in FISA cases being anything other than probable cause, Drmiler.

I listened to General Hayden's entire presentation, as opposed to just this little cherry-picked exchange. He was impressively lucid, patiently laying out the facts for the bored reporters in the room who weren't the least bit interested in what he had to say, itching only for his remarks to end so they could chuck their prepared spears. NSA critics should pry open their minds and at least attempt to absorb the entirety of what he had to say.

And davad, to reiterate, this time with additional emphasis added:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

Since the term "unreasonable" is in the amendment, it appears an argument could be made thatreasonable searches and seizures are constitutional. The question then becomes the legal definition of "reasonable," or perhaps more accurately, "unreasonable."

Searches and seizures aimed specifically at thwarting another 9/11-type catastrophe would, in the eyes of many, fall under the umbrella of reasonableness. Anyone who seriously thinks the NSA is sifting through the billions of daily bits, bytes & microwave chunks to find out who's porkin' who on whose time or that they have time to even care what we are legally doing in the course of our daily lives just doesn't understand the problem and chooses to believe a myth of NSA omnipotence and omnipresence that the NSA could not hope to match. It's like Dorothy believing in the Wizard of Oz.

I'd be glad for our Congress to do it's effing job and define "unreasonable" once and for all, but I'm not holding my breath. We had, and continue to have, a huge problem to solve. I, for one, am grateful that someone in the government has been paying attention to something. God knows the Homeland Security Department doesn't even know where the toilets are yet, let alone the coffee messes.

Cheers,
Daiwa

Who said anything about Hayden being elected to congress?

Well, I figured this was in response to mine since it was in the same vein. Unlike others, I dont give a rip if you link to the original.

But blog on! maybe we can do one on Earl and his lack of knowledge of the Constitution?

Since the term "unreasonable" is in the amendment,

He gets more credit than clueless Leahy who had to ask Alito where the right to Free speech was!

NSA critics should pry open their minds and at least attempt to absorb the entirety of what he had to say.

To be clear, I'm not saying that there is not a necessity for this type of surveillance. If someone here in the US is chattin it up with terrorists, I want the govt. to know about it.

I just don't accept that they have to go about it in this backdoor way like they have, when they already had a legal means to do the exact same thing. There is nothing in their justification/explanation that has demonstrated a need to bypass FISA. FISA is basically a rubber stamp anyways, with a very low burden of proof required. There is also great flexibility with regards to emergency circumstances. If there is some other problem with FISA that we are not aware of, then why didn't they try to get Congress to fix it? And if they are going to fall back on the authorization for military force or the 4th amendment as their justification, then why did they specifically ask (and were denied) to have this surveillance method implicitly granted in the use of force authorization? It just doesn't make any sense to me.

He gets more credit than clueless Leahy who had to ask Alito where the right to Free speech was!

I know it's hard for you to resist, but that was a very cheap shot at Leahy. He was not asking that question in the context that you're framing it.

Sounds like we have some basis for agreement, davad.

It remains to be seen whether what the NSA has done was an intentional "back door" dodge they were knowingly using to avoid the law or an above-board conscientious effort to accomplish an objective genuinely felt to be within their purview and authority since 1982 or so, and signed off on by all the duly-sworn superiors, individual and departmental. There is a tendency to assume evil motives, then insist that those assumed to have them prove they don't. That's the standard MO of the press, but we here don't have to use it - our jobs don't depend on it and we can, in theory at least, be a bit more objective and patient.

Cheers,
Daiwa

I know it's hard for you to resist, but that was a very cheap shot at Leahy. He was not asking that question in the context that you're framing it.

Cheap shot? In his own words? he was asking Alito why he could discuss the right of free speech, vs the right of privacy!

Alito answered "because one is enumerated, and the other inferred".

out of Context? You do try to spin! badly I might add!

Cheap shot? In his own words? he was asking Alito why he could discuss the right of free speech, vs the right of privacy! Alito answered "because one is enumerated, and the other inferred". out of Context? You do try to spin! badly I might add!

Dr. Guy, would you please show me where you're getting these quotes from Alito and Leahy, I don't see it in the transcripts.

then why did they specifically ask (and were denied) to have this surveillance method implicitly granted in the use of force authorization? It just doesn't make any sense to me.

actually they didn't have to even ask. It's automatically added. And while I'm thinking about it. Did you happen to read "all" of what Hayden said? The only ones targeted are clls being made from or to countries with terrorist ties.

Still waiting on your response for this one regarding the legal standard in FISA cases being anything other than probable cause, Drmiler.

I guess on this one I stand corrected. Seems I was wrong.

Alternatively, the government may seek a court order permitting the surveillance using the FISA court.[8] Approval of a FISA application requires the court find probable cause that the target of the surveillance be a "foreign power" or an "agent of a foreign power

It's called "time constraints"! Usually when they get a tip like that they do not have the luxury of putzing around! What time constraints? They don't have to wait for the judge to rule before they act, they just have to go back and show probable cause to get the warrant after the fact. That's one of the points of having the FISA court, so they don't have to wait.

All of this is purely semantics. From FISA

Without a court order The President may authorize, through the Attorney General, electronic surveillance without a court order for the period of one year provided it is: only for foreign intelligence information [2a] targeting foreign powers as defined by 50 U.S.C. §1801(a)(1),(2),(3) [3] or their agents; and there is no substantial likelihood that the surveillance will acquire the contents of any communication to which a United States person is a party.[4]

actually they didn't have to even ask. It's automatically added. And while I'm thinking about it. Did you happen to read "all" of what Hayden said? The only ones targeted are clls being made from or to countries with terrorist ties.

If it's implicit, then why did they ask?

From Tom Daschle;

Just before the Senate acted on this compromise resolution, the White House sought one last change. Literally minutes before the Senate cast its vote, the administration sought to add the words "in the United States and" after "appropriate force" in the agreed-upon text. This last-minute change would have given the president broad authority to exercise expansive powers not just overseas -- where we all understood he wanted authority to act -- but right here in the United States, potentially against American citizens. I could see no justification for Congress to accede to this extraordinary request for additional authority. I refused.Link

And it's not implicit according to many legal experts, including the Congressional Research Service;

A report by Congress's research arm concluded yesterday that the administration's justification for the warrantless eavesdropping authorized by President Bush conflicts with existing law and hinges on weak legal arguments.

The report also concluded that Bush's assertion that Congress authorized such eavesdropping to detect and fight terrorists does not appear to be supported by the special resolution that Congress approved after the Sept. 11, 2001, terrorist attacks, which focused on authorizing the president to use military force.

Link

How is all this semantics? Also, you forgot to underline this part of what you quoted above;

and there is no substantial likelihood that the surveillance will acquire the contents of any communication to which a United States person is a party.[4]

That little caveat

and there is no substantial likelihood that the surveillance will acquire the contents of any communication to which a United States person is a party.[4]

is a bit problematic, isn't it? It would leave the gaping hole wide open as any individual physically situated in the US is a "United States person" as defined by the law. This could mean that if Mohammed Atta were chatting up OBL from DC, as a hypothetical, we'd be precluded from sniffing for it.

And what does the phrase "or their agents" mean? If it means agents of foreign enemies who happen to be US citizens, or non-citizens situated in the US, what then?

And if FISA is nothing more than a CYA "rubber stamp" exercise, as you appear to believe, what's its purpose, other than cosmetic?

Cheers,
Daiwa

is a bit problematic, isn't it? It would leave the gaping hole wide open as any individual physically situated in the US is a "United States person" as defined by the law. This could mean that if Mohammed Atta were chatting up OBL from DC, as a hypothetical, we'd be precluded from sniffing for it.

(i) “United States person” means a citizen of the United States, an alien lawfully admitted for permanent residence (as defined in section 1101 (a)(20) of title 8), an unincorporated association a substantial number of members of which are citizens of the United States or aliens lawfully admitted for permanent residence, or a corporation which is incorporated in the United States, but does not include a corporation or an association which is a foreign power, as defined in subsection (a)(1), (2), or (3) of this section.

And what does the phrase "or their agents" mean? If it means agents of foreign enemies who happen to be US citizens, or non-citizens situated in the US, what then?

(b) “Agent of a foreign power” means—
(1) any person other than a United States person, who—
(A) acts in the United States as an officer or employee of a foreign power, or as a member of a foreign power as defined in subsection (a)(4) of this section;
(B) acts for or on behalf of a foreign power which engages in clandestine intelligence activities in the United States contrary to the interests of the United States, when the circumstances of such person’s presence in the United States indicate that such person may engage in such activities in the United States, or when such person knowingly aids or abets any person in the conduct of such activities or knowingly conspires with any person to engage in such activities; or
(2) any person who—
(A) knowingly engages in clandestine intelligence gathering activities for or on behalf of a foreign power, which activities involve or may involve a violation of the criminal statutes of the United States;
(B) pursuant to the direction of an intelligence service or network of a foreign power, knowingly engages in any other clandestine intelligence activities for or on behalf of such foreign power, which activities involve or are about to involve a violation of the criminal statutes of the United States;
(C) knowingly engages in sabotage or international terrorism, or activities that are in preparation therefor, for or on behalf of a foreign power;
(D) knowingly enters the United States under a false or fraudulent identity for or on behalf of a foreign power or, while in the United States, knowingly assumes a false or fraudulent identity for or on behalf of a foreign power; or
(E) knowingly aids or abets any person in the conduct of activities described in subparagraph (A), (B), or (C) or knowingly conspires with any person to engage in activities described in subparagraph (A), (B), or (C).

And if FISA is nothing more than a CYA "rubber stamp" exercise, as you appear to believe, what's its purpose, other than cosmetic?

It's not a complete CYA-Rubber Stamp, as it does allow a measure of true oversight.

Thanks for the specific language, davad, as it clears up things in a number of ways. I misspoke about what constitutes a United States person under the law and I now remember why I had it wrong - Hayden had referenced the fact that before 9/11, for purposes of the NSA's activities and out of technical & operational necessity, anyone physically situated in the US was considered to effectively be a United States person & out of bounds for surveillance, even if the other end of the communication link was external to the US. This was one of the shortcomings of our intelligence capabilities identified in the post-9/11 retrospectives. Since the law gives NSA to authority to monitor "foreign agents", even in-country, leaves me wondering what the fuss is about, actually...

Though I suppose it moves the ball to "knowingly" and "foreign power" doesn't it?

And "a measure of true oversight" sounds rather cosmetic to me, especially when it's post-facto.

Cheers,
Daiwa

How is all this semantics? Also, you forgot to underline this part of what you quoted above; and there is no substantial likelihood that the surveillance will acquire the contents of any communication to which a United States person is a party.[4]

And just as obviously you over-looked or ignored this part:

only for foreign intelligence information

If they are only targeting calls to and from countries with terrorist ties then that would be considered foreign intel.

If it's implicit, then why did they ask? From Tom Daschle;

I would have thought you could figure that out on your own. It's called "CYA"!

Just before the Senate acted on this compromise resolution, the White House sought one last change. Literally minutes before the Senate cast its vote, the administration sought to add the words "in the United States and" after "appropriate force" in the agreed-upon text. This last-minute change would have given the president broad authority to exercise expansive powers not just overseas -- where we all understood he wanted authority to act -- but right here in the United States, potentially against American citizens. I could see no justification for Congress to accede to this extraordinary request for additional authority. I refused.Link And it's not implicit according to many legal experts, including the Congressional Research Service; A report by Congress's research arm concluded yesterday that the administration's justification for the warrantless eavesdropping authorized by President Bush conflicts with existing law and hinges on weak legal arguments. The report also concluded that Bush's assertion that Congress authorized such eavesdropping to detect and fight terrorists does not appear to be supported by the special resolution that Congress approved after the Sept. 11, 2001, terrorist attacks, which focused on authorizing the president to use military force. Link

If what GW has done was as illegal as you and your link assert, then "why" hasn't GW been brought up on charges in front of the senate? I'll tell you why...because their case is weak and unsubstantiated. And they know it. If they try and fail it'll be all over for the left except for the crying! They are already on shaky ground with the American public on this.