A Reasonable Suspicion of Illegality

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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.

James Baker was then counsel for intelligence policy at the Department of Justice and head of the Office of Intelligence Policy and Review, which is the office that prepares and presents to the FISA court "all the applications under the FISA Act for electronic surveillance and physical search of foreign powers and their agents." If there was any expert on FISA warrant and applications at the time, it was Baker. He began his testimony by praising the PATRIOT ACT FISA changes, testifying as follows:

In my view, the changes have allowed us to move more quickly and more effectively and to also be more focused in our approach in dealing with the kinds of threats that Mr. Bowman made reference to. So we at the Department are grateful for the changes that Congress made in the statute, because I believe they've been important and have been employed effectively.

No word of how "ineffective" FISA is there. No testimony there from the Bush' top FISA guy about being hamstrung by the requirements of FISA. Baker then stated the DeWine Amendment "raises both significant legal and practical issues." In his formal statement to the Committee, Baker wrote:

The Department of Justice has been studying Sen. DeWine's proposed legislation. Because the proposed change raises both significant legal and practical issues, the Administration at this time is not prepared to support it.

The Department's Office of Legal Counsel is analyzing relevant Supreme Court precedent to determine whether a "reasonable suspicion" standard for electronic surveillance and physical searches would, in the FISA context, pass constitutional muster. The issue is not clear cut, and the review process must be thorough because of what is at stake, namely, our ability to conduct investigations that are vital to protecting national security. If we err in our analysis and courts were ultimately to find a "reasonable suspicion" standard unconstitutional, we could potentially put at risk ongoing investigations and prosecutions.

The practical concern involves an assessment of whether the current "probable cause" standard has hamstrung our ability to use FISA surveillance to protect our nation. We have been aggressive in seeking FISA warrants and, thanks to Congress's passage of the USA PATRIOT Act, we have been able to use our expanded FISA tools more effectively to combat terrorist activities. It may not be the case that the probable cause standard has caused any difficulties in our ability to seek the FISA warrants we require, and we will need to engage in a significant review to determine the effect a change in the standard would have on our ongoing operations. [Baker testified twice at the hearing that the administration made "aggressive" use of the FISA process, and that the FISA court had not rejected ONE of its warrants under the probable cause standard]. If the current standard has not posed an obstacle, then there may be little to gain from the lower standard and, as I previously stated, perhaps much to lose.

More below the fold...

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So, as of July 31, 2002, the Administration was not sold on the constitutionality of a "reasonable suspicion" standard for non-U.S. citizens. Keep that in mind as we continue through the testimony.

The Committee also heard testimony from Jerry Berman, former chief legal counsel for the ACLU and the man who helped draft FISA. Professor Charles Fishman, Professor of Law at the Catholic University's Columbus School of Law, also testified and was described as having "extensive trial experience and is a published author on issues of evidence and wire-tapping."

Mr. Berman testified that lowering the standard, in addition to changing the definition of "agent of foreign power" would be clearly illegal:

[I]f we put the two together and lowered the standard to reasonable suspicion, as Mr. DeWine proposes, I believe that is clearly unconstitutional. One: the Abel case says the Constitution applies to aliens. The Keith case, which ruled that intelligence--that wiretaps--can be applied to domestic cases said lower standards can be used. But we are talking about a new mixed statute, which is not only intelligence but criminal and can be used for criminal prosecution purposes. And if the court finds that you're using FISA to get criminal prosecutions, there will be great questioning of the basis on which you gather that information and the Constitution, Fourth Amendment, says ``probable cause'' and I agree, in final, with the Attorney General said it is the Constitution is getting in our way and that's the point. And that's the point--the Constitution here--and it is in your way.

Meanwhile, Professor Fishman, who reluctantly supported a reasonable suspicion standard for non-U.S. citizens, had this to say about the DeWine Amendment:

FISHMAN: What's unusual, perhaps even radical, about Senator DeWine's proposal is that it would take the reasonable suspicion standard and apply it to an extremely intrusive form of surveillance. There's nothing more intrusive than surreptitious electronic surveillance of communications. It would be a radical change from the current state of the law. I think it would nonetheless be upheld as constitutional because it is very tightly drawn and because of necessity in which we find ourselves, given the sick and dangerous world that we exist in. But it clearly is a significant departure from the entire range of reasonable suspicion jurisprudence the Supreme Court has given us to date.

Wow...if lowering the standard for non-U.S. citizens was described as a "radical" and "significant" departure from the law, then how would Fisherman dare to describe applying that standard to United States citizens, who traditionally are afforded much greater legal protection than non-U.S. citizens? As Professor Fisherman testified:

It is a well established principle that people who are in the United States illegally or only temporarily enjoy somewhat less legal protection than citizens and green card holders. This supports the constitutionality of requiring less information--that is, only reasonable suspicion--to authorize surveillance of such people than is required to surveil U.S. persons.

We must remember moreover that such electronic surveillance and physical searches inevitably would intrude into the privacy not only of the non-U.S. person who was the target but of many U.S. persons as well--anyone the target talks to on his telephone or shares space with or communicates with by computer, depending upon the type of surveillance. Until now the law has not permitted that degree of intrusion into anyone without a search warrant or interception order based on probable cause. Thus, this proposal boldly goes where no law has gone before.

Re-read his testimony again. The law does not permit warrantless surveillance searches without probable cause. The Supreme Court has held that police frisks and other more limited forms of searches could be held to a "reasonable suspicion" standard. But as to the pervasive, highly intrusive search that occurs when the government wiretaps or intercepts the communications of its citizens, a probable cause standard is constitutionally required.

DeWine's proposal, a proposal which "boldly went where no law has gone before," was rejected. And in that rejection, the Congress put the administration on notice that it was not prepared to violate the Constitution and abrogate the rights of non-U.S. citizens. What then makes the administration think Congress approved such abrogation of rights for United States citizens, who enjoy the highest level of protection under the law?

Mark my words, Hayden's revelation that a reasonable suspicion standard is being applied to United States citizens is perhaps the most damaging admission by a government official to date about the program. With a single exchange, Hayden demonstrated that indeed, Bush's program violates established case law and the Constitution. With a single statement, Hayden proved that Congress did not, would not, and will not approve of this program. And with his revelation, Hayden revealed that this administration knew what it was doing was just plain wrong.

The excuse that the FISA court wasn't flexible enough is a lie. The excuse that there was too much paperwork to push around--despite a 72 safe harbor--was a lie. And the excuse that probable cause was too high a standard to fulfill was also a lie.

The truth is that Bush went outside the law because he sought to impose a standard which the administration itself rejected in 2002. It knew full well that, if such a standard were illegal as applied to non-U.S. citizens, its illegality would be beyond doubt when applied to those who enjoy the full force of 4th Amendment.

A reasonable suspicion of illegality indeed.