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View Diary: 99.80% Error rate! NSA Leaks destroy legal defenses of wiretaps! (93 comments)

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  •  I have a few questions, though... (none)
    1. About the second test regarding the credibility of the source of the info -- are you sure this would apply here? Anything obtained from the NSA program would never be used in court but something from a regular narcotics bust, done via a search warrant, would. So why would the NSA have to meet that second standard if the purpose of the program is only to find what may be a threat to look into further using more legal methods and not to find evidence that would be presented in court? Granted, the NSA wiretap may lead to a fully legal FBI wiretap but they are not the same things.

    2. Would the fact that most of the conversations obtained were discarded not dispose of the possibility that the administration is NOT wiretapping any political enemies and is only looking for terror suspects, as they claim?
    •  It's not about warrants (none)
      Very early on, after these wiretaps were revealed; the Administration attempted to defend itself by saying the 4th amendment merely required probable cause to search not a judicial finding of Probable cause backed up by a signed warrant.

      They Relied on a line of Supreme Court cases based on searches of automobiles for narcotics (the Chimel Chelton Chadwick Belton and Ross), where the Supreme Court carved out an "automobile exception" to the General Requirement that no search is lawful without a warrant.  The rationale was that a) Cars are easily moveable so exigent circumstances exist AND people have a lesser expectation of privacy in their cars-(the administration seems to have conveniently forgotten the second half).  

      However, The Court was admant that the searching officer MUST still have probable cause to search equivalent to that which WOULD have gotten him a warrant had there been time.  In other words, the legal standard for finding probable cause stays exactly the same with or without a warrant.

      Now the Aguilar case defines what probable cause IS.  Its definition has two parts:

      1) that the evidence, taken as whole  would lead a reasonably prudent person to believe that a crime has been committed

      AND

      2) That the Reliablity and competency of that evidence be established to a reasonable degree of certainty

      Without both, probable cause does not exist and thus even by the Administration's own arguements, the search is illegal,

      Knowledge is power Power Corrupts Study Hard Be Evil

      by Magorn on Tue Feb 07, 2006 at 07:43:20 AM PST

      [ Parent ]

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