Democrats and national security law experts who oppose the NSA program say the Justice Department's opposition to the DeWine legislation seriously undermines arguments by Attorney General Alberto R. Gonzales and others, who have said the NSA spying is constitutional and that surveillance warrants are often too cumbersome to obtain.So it really is all about who's on top. It's about not being answerable to the courts, because the issue is not "What standard do we use?", but, much more importantly, "Who decides that standard has been met?"
"It's entirely inconsistent with their current position," said Philip B. Heymann, a deputy attorney general in the Clinton administration who teaches law at Harvard University. "The only reason to do what they've been doing is because they wanted a lower standard than 'probable cause.' A member of Congress offered that to them, but they turned it down."
But Justice Department officials disagreed, saying the standard the department opposed in 2002 is legally different from the one used by the NSA.
"The FISA 'probable cause' standard is essentially the same as the 'reasonable basis' standard used in the terrorist surveillance program," said spokeswoman Tasia Scolinos, using the term for the NSA program the White House has adopted. "The 'reasonable suspicion' standard, which is lower than both of these, is not used in either program."
Justice officials also said that even under a different standard, the process of obtaining a surveillance warrant would take longer than is necessary for the NSA to efficiently track suspected terrorists.
Look at the 4th Amendment again:
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."Shall issue" means someone has to give a warrant, and that someone has to give that warrant only after a showing of probable cause.
But if you eliminate that "someone," then the standard can be "beezlefluster" just as well as "reasonable basis," or even "probable cause." Especially if the agency seeking the warrant and issuing the warrant (or, in this case, failing wholly to bother with a warrant) has unilaterally decided that "reasonable basis" means the same things as "probable cause."
Or maybe they just decided that "probable cause" isn't even in the 4th Amendment. In which case, they don't have to bother at all.
Which is the point, isn't it? "Under the NSA program, Hayden said, 'the trigger is quicker and a bit softer than it is for a FISA warrant.' " Because that entire history of the development of the concept of probable cause that first year law students struggle to learn is just so, so...legal!
And this Administration can't be bothered with something so paltry as a legal system.