A Penguin in the Orchard

Reasonable Or Probable?

This really isn’t so difficult. The administration, in the voice of General Michael Hayden, has now made the claim that the Fourth Amendment requires only a standard of reasonableness in order to execute a search. Let’s see what the Constitution actually says:

FindLaw: U.S. Constitution: Fourth Amendment

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.

I’m not sure how it could be more clear that the standard is probable cause. The Bush administration admits that the electronic eavesdropping program was, in fact, based upon a “reasonable belief” that one end of the tapped phone calls was an al-Qaida operative. This is a typically backward belief.

The Constitution protects against unreasonable searches and seizures in two ways. First, it requires that a warrant be issued for such searches and seizures. Second, it requires that requests for search and seizure be filtered through the probable cause standard. In other words, the agreement by a judge that probable cause exists to issue a warrant serves to clarify any question of the reasonableness of the search. Clearly, the Bush administration is either completely inept and ignorant of the Constitutional requirements, or it believed that even the broadly-approving FISA court would find no probable cause to support this program.

Aside from the ethical questions of whether it’s right for the government to listen in on the phone conversations of its citizens, it certainly appears illegal to me.