The Reasonableness of Bush and Hayden

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". . . we believe -- I am convinced that we are lawful because what it is we're doing is reasonable."-Gen. Michael Hayden before the National Press Club January 2006


The reasonable test. Reasonableness. That's the threshold test Bush and his lawyer Gonzales use to determine whether to spy on Americans. 'Reasonableness' is also the standard that Bush's nominee for the CIA, Gen. Hayden, has used to defend the warrant-less wiretapping and data-mining of U.S. citizens, in blatant disregard for the FISA law set in place by Sen. Kennedy and others in response to unwarranted surveillance in the '60's and the '70's.

Is the FISA law reasonable?

FISA isn't exactly an institution which should hearten those who advocate open government. The FBI and the NSA have used the act to set up a secret courts and have perverted the act to conduct surveillance for domestic criminal investigations in addition to their foreign counterintelligence probes.

The FISA court and the Court of Review authorize government wiretaps in foreign intelligence investigations. Under FISA, all hearings and decisions are conducted in secret. The government is normally the only party to FISA proceedings and the only party that can appeal to the Supreme Court.

The ACLU has asked the Supreme Court to review whether the Constitution and the Patriot Act permitted the government to use looser foreign intelligence standards to conduct surveillance in criminal investigations in the United States. The Supreme Court refused that request. In an appeal, the ACLU argued that,"These fundamental issues should not be finally by courts that sit in secret, do not ordinarily publish their decisions, and allow only the government to appear before them."

The ACLU and its supporters have asserted that some of their members and many other Americans are currently subject to illegal surveillance, noting that the FBI has already targeted its members in numerous other ways. Under the FISA statute, a U.S. citizen may be subject to a FISA surveillance order for political statements and views that are determined to be unpopular by the secret Court of Review.


According to the ACLU:

- 8,000 Arab and South Asian immigrants have been interrogated because of their religion or ethnic background, not because of actual wrongdoing.
- Thousands of men, mostly of Arab and South Asian origin, have been held in secretive federal custody for weeks and months, sometimes without any charges filed against them. The government has refused to publish their names and whereabouts, even when ordered to do so by the courts.
- The press and the public have been barred from immigration court hearings of those detained after September 11th and the courts are ordered to keep secret even that the hearings are taking place.
- The government is allowed to monitor communications between federal detainees and their lawyers, destroying the attorney-client privilege and threatening the right to counsel.
- New Attorney General Guidelines allow FBI spying on religious and political organizations and individuals without having evidence of wrongdoing.
- President Bush has ordered military commissions to be set up to try suspected terrorists who are not citizens. They could convict based on hearsay and secret evidence by only two-thirds vote. (It was reported this week that Bush is looking to speed up the Court's determination of the legality of the commissions.)
- American citizens suspected of terrorism are being held indefinitely in military custody without being charged and without access to lawyers.

The FISA courts are, despite their misuse, the primary check on the Executive branch's and their agents' ambitions to eavesdrop and muckrake into the lives of our country's citizens for reasons of national security or for other more nefarious purposes. Before the president can get authority from the FISA court they need to make their case. Probable cause is the standard that the law proscribes for the court to use in determining whether to grant authority to conduct surveillance on U.S. citizens.

But, the Bush administration's advocates have coined their own standard outside of the FISA courts which is a decidedly lower threshold than the judges would ever allow. This is Gen. Hayden on the fourth amendment from the National Press Club in January 2006 in his exchange with a reporter:


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 of 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.


A quick read of the fourth amendment, however, doesn't jibe with Gen. Hayden's reliance on the 'reasonableness' standard in his defense of his boss. The amendment states that:

"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."

Probable cause is defined by the "totality of circumstance" test established in Illinois v. Gates (462 U.S. 213) (1983), overturning the two-pronged test in which prosecutors tried to rely on an informant's "veracity," "reliability" and "basis of knowledge" and were found by the Illinois Supreme Court to be "highly irrelevant". (http://caselaw.lp.findlaw.com/scripts/getcase.pl?navby=case&court=us&vol=462&page=213)

The flawed assertions by the prosecution in the 'Illinois' case sound as close as can be to Bush's and Hayden's 'reasonableness' standard. Where is the 'totality of circumstances' in the wide net they cast with their random wiretaps and data mining?

The FISA law doesn't leave any room for their loose standard of judgment. That's why we established the FISA courts. It's absurd for the Bush regime to assume they alone should have the authority to unilaterally determine whether they have met the threshold required to conduct surveillance on Americans. That judgment should be made within the democratic system of due process that our representatives clearly intended for the FISA to represent.

The fourth amendment protections against unreasonable search and seizure that the FISA court relies on serve to restrain our government and its elected representatives as they perform their duties, to act in a manner which preserves the promises of democracy and provides for free expression, debate, advocacy, and representation in our political and legal system. Without these constitutional protections, it is impossible for the government to act decisively on the assumption it has the full weight of the American people behind any decision it might make.

In wartime, a weak franchise may wrongfully view opposition as treason and seek to crush it. But, in the absence of the full consent of the governed, and by shunning the very constitutional protections our leaders swore to defend, such a heavy hand by the omnipresent government could rightly be seen as tyranny.

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1. Video: General Hayden on the 4th Amendment

http://www.newsnow.co.uk/cgi/NGoto/141730384?

http://www.youtube.com/watch?v=tNTNmT5t3t8

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2. Relying on 'Reasonable' Beliefs of Bush and Hayden

final:

http://www.opednews.com/articles/opedne_ron_full_060509_the__reasonable__bel.htm

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3. Glen Greenwald: The "Bad Law" defense

According to Hayden, the reason the President wanted to bypass FISA was because FISA requires a showing of "probable cause" in order to obtain a FISA warrant for eavesdropping on telephone conversations, and the President believed that standard was too burdensome. They therefore lowered the standard from "probable cause" to "reasonable basis to believe," and also eliminated the legal requirement that a federal judge approve of the eavesdropping (and replaced it with the requirement that a NSA "shift supervisor" approve) – which is all a way of saying that they "changed" (i.e., violated) the law knowingly, unilaterally, and in secret.

http://glenngreenwald.blogspot.com/2006/01/bad-law-defense.html

[Disturbed]

4. Hayden is either stupid or he is a blatant liar.

I report. You decide.

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5. stupid

blatent liar

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6. Media matters sorts out a Newshour muddle

Tue, May 9, 2006

During an interview with Rep. Heather Wilson (R-NM) on the May 8 edition of PBS' The NewsHour, host Jim Lehrer failed to challenge Wilson's claim that Air Force Gen. Michael V. Hayden, President Bush's nominee to be CIA director, had been "very, very candid about the program, its authorities, how it operates, and so forth." In fact, Hayden has defended the program with shifting and contradictory explanations and failed to answer questions regarding whether it has been used to spy on U.S. residents with no ties to terrorism. Moreover, in 2002 testimony, Hayden misled Congress about the existence of the warrantless eavesdropping program.

As head of the National Security Agency (NSA) from 1999 until 2005, Hayden designed and implemented the domestic surveillance program secretly authorized by Bush shortly after the terrorist attacks of September 11, 2001. Under the president's authorization, the NSA routinely intercepted the international communications of U.S. residents without warrants, in apparent violation of the Foreign Intelligence Surveillance Act (FISA), which requires court approval for such surveillance.



Some Media Matters possible follow-up questions to the Lehrer interview include:


* Rep. Wilson, you said that Hayden was "very candid about the program, its authorities, how it operates, and so forth." But he has repeatedly been asked whether the NSA's warrantless domestic surveillance operation has targeted political opponents of the Bush administration -- at a January 23 press conference and on the February 6 editions of both ABC's This Week and Fox Broadcasting Co.'s Fox News Sunday. In each case, he has appeared to dodge the question and neglected to offer a blanket denial of such activities. Does this meet your definition of candid?

* In his early remarks on the NSA's domestic eavesdropping, Hayden asserted that the program employs a lower standard of proof than required under FISA. He said on February 23, "The trigger is quicker and a bit softer than it is for a FISA warrant." Shortly thereafter, the Department of Justice (DOJ) declared that the operative standard for NSA surveillance -- "reasonable basis" -- was no different than FISA's requirement for "probable cause." And in a subsequent interview, Hayden repeated this explanation -- that the evidentiary standard used by the NSA "is in that probable-cause range" -- thereby contradicting his earlier statement. How do you explain Hayden's contradictory statements, in light of your assessment of his candor and independence?

more: http://mediamatters.org/items/200605090010