Probable Cause

Dear Internets, Today I wrote a letter to Al Gore (shorter version: "Dear Al, I love you, please save us from this hideous nightmare or else I will move to New Zealand"), called Kerry and Kennedy to tell them to join the filibuster, called Barney Frank's office to tell him how great it is that he's sponsoring a bill for total public funding of congressional elections, and sent letters to Kerry, Kennedy, and Frank asking them to please impeach the president. (In case they don't have time to read the letters, I sealed them with little "Impeach" stickers). This took up my whole morning. In the afternoon some friends came over to ogle the grain mill and knead some bread dough. Then I made dinner. While I was making dinner Ari decided to refrain from informing us about an ongoing pooping operation in his big boy underpants. I did not have probable cause to obtain a warrant, and, unlike some people, I don't think that instituting a search based on a "reasonable belief" is constitutional. Eventually, a puddle of pee-pee on the floor constituted probable cause.

Okay, I'm stretching a bit to relate the NSA spying stuff to our adventures in potty-training. So we cleaned the kid up, I finished making dinner, we ate, I put him to bed, we spent an hour tracking down some invoice stuff so we could confirm a 1099-misc, and now here I am, wishing someone else would just show up and write this damn post about the spies and the spying spiers who spy on us. The Admin is on a big media push to prove that they are just super-dooper trying to protect us from the bad men, that they're totally legal, and useful, and they aren't spying on anyone you give a shit about anyway, so shut the hell up. But get this:

General Hayden defended the program's constitutionality. He said the lower, "reasonable belief" standard conformed to the wording of the Fourth Amendment, asserting that it does not mention probable cause, but instead forbids "unreasonable" searches and seizures.

"The constitutional standard is reasonable," he said. "I am convinced that we are lawful, because what it is we're doing is reasonable," he said.

The Fourth Amendment, however, reads: "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."

Ah, I see. They think if they don't issue warrants, they don't have to have probable cause, that they just have to not be unreasonable. Um, that's an interesting interpretation, but I'm not sure it's an 'originalist' one.

Actually, it was so unbelievable to me that Hayden would mis-cite the 4th Amendment that I went back to the transcript of the press conference itself. (Pity me, I found the link off a Powerline post...) Here's the context:

QUESTION: Jonathan Landay with Knight Ridder. I'd like to stay on the same issue, and that had to do with the standard by which you use to target your wiretaps. I'm no lawyer, but my understanding is that the Fourth Amendment of the Constitution specifies that you must have probable cause to be able to do a search that does not violate an American's right against unlawful searches and seizures. Do you use --

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 --

QUESTION: The court standard, the legal standard --

GEN. HAYDEN: -- unreasonable search and seizure.

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." And so what many people believe -- and I'd like you to respond to this -- is that what you've actually done is crafted a detour around the FISA court by creating a new standard of "reasonably believe" in place in probable cause because the FISA court will not give you a warrant based on reasonable belief, you have to show probable cause. Could you respond to that, please?

GEN. HAYDEN: Sure. I didn't craft the authorization. I am responding to a lawful order. All right? The attorney general has averred to the lawfulness of the order. 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.

I love this: "I am convinced that we are lawful because what it is we're doing is reasonable." I think everyone who is arrested should start using this line. "But officer, it's perfectly reasonable!".