Up until now the Government's argument has gone something like this "well Yes we don't have a warrant, but the Fourth amendment only requires probable cause , not a warrant and trust us, we've always
probable cause before wiretapping, so the Fourth Amendment is safe and sound. Sleep tight...and uhh...don't mumble so much when you talk on the phone."
BZZZZT! As Alex Trbek would say, " No Sourrey, that's not a correct answer"
Yah see, finding that pabable cause exists is a TWO pronged test, and as of today's revelations, the NSA wiretaps Utterly fail the second part:
National security lawyers, in and out of government, said the washout rate raised fresh doubts about the program's lawfulness under the Fourth Amendment, because a search cannot be judged "reasonable" if it is based on evidence that experience shows to be unreliable.
Bingo! give that reporter a Giant Cigar! That's right Kids, no matter how much probable cause, reasonable suspicion, or even reasonable probability (I think I just made that one up), the government can show, it don't mean a thing unless they can also satisfy a judge that the source of the information is reliable.
Or if you prefer your legalese straight up without a chaser:
The second part of the two part test was most famously described in the landmark case of Aguilar vs. US 378 US 108(1964) :
[for Probable cause to issue a warrant to exist] the magistrate must [Also] be informed of some of the underlying circumstances relied on by the person providing the information and some of the underlying circumstances from which the affiant concluded that the informant,....is creditable or his information reliable
In plain English this is an easy distinction to understand. Consider this example:
A random person walks up to a police officer and alleges drugs are being sold at a nearby house. The officer seeks a warrant based on the statement to raid the house? Is it there enough probable cause to issue a warrant?
Now suppose that person is not random but the police officer's regular snitch, who has provided hundreds of reliable tips in the past and is willing to state on the record he saw the drugs with his own two eyes.
The difference is obvious. Both requests for warrants are based on the same evidence; a statement by an eyewitness to illegal activity. However, with one you have no way of measuring the credibility of the witness, but in the second you do. This is exactly why the Court requires both prongs to be satisfied before probable cause exists.
And right now that second prong is a BIG problem for the government:
The minimum legal definition of probable cause, said a government official who has studied the program closely, is that evidence used to support eavesdropping ought to turn out to be "right for one out of every two guys at least."
Compare that to the hit rate of 1 in every 500 or so. As it works now, there is simply no way to argue this program is legal under existing law., and its pretty clear Bush's boys knew that from the get go.
Those who devised the surveillance plan, the official said, "knew they could never meet that standard -- that's why they didn't go through" the court that supervises the Foreign Intelligence Surveillance Act, or FISA.
and even if we were to spot them some lower standard of evidence (which they argued for despite without any constitutional justification), they STILL fall woefully short:
Michael J. Woods, who was chief of the FBI's national security law unit until 2002, said in an e-mail interview that even using the lesser standard of a "reasonable basis" requires evidence "that would lead a prudent, appropriately experienced person" to believe the American is a terrorist agent. If a factor returned "a large number of false positives, I would have to conclude that the factor is not a sufficiently reliable indicator and thus would carry less (or no) weight."
This may explain why the government has so rarely actually tried to get actual warrants based on these wiretaps:
Hayden said the government goes to the intelligence court when an eavesdropping subject becomes important enough to "drill down," as he put it, "to the degree that we need all communications."
Yet a special channel set up for just that purpose four years ago has gone largely unused,. Since early 2002, when the presiding judge of the federal intelligence court first learned of Bush's program, he agreed to a system in which prosecutors may apply for a domestic warrant after warrantless eavesdropping on the same person's overseas communications. The annual number of such applications, a source said, has been in the single digits.
That high Washout rate may have something to do with the fact that event he agents working the project acknowledge it's basically BS:
Other officials, said the prevalence of false leads is especially pronounced when U.S. citizens or residents are surveilled. No intelligence agency, ... believes that "terrorist . . . operatives inside our country," as Bush described the surveillance targets, number anywhere near the thousands who have been subject to eavesdropping.
Let that one sink in for a sec. They are tapping THOUSANDS of Phones and E-mail, even though they know only the smallest fraction of them are even potentially valid targets. In fact, supporters of the program, rather than try to deny this fact instead have tired to set an incredibly low threshold for deeming it a success:
Contributors to the technology said it is a triumph for artificial intelligence if a fraction of 1 percent of the computer-flagged conversations guide human analysts to meaningful leads.
By which they don't even mean finding actual bad guys trying to attack us but rather
Even unwitting Americans, they said, can take part in communications -- arranging a car rental, for example, without knowing its purpose -- that supply "indications and warnings" of an attack.
That's right, checking to make sure the Ford Escort you rented to visit Aunt Millie isn't an integral part of some obscure terrorist plot is precisely the sort of thing we should be devoting our limited manpower and resources to no?
The legal justifications for this program were always at best, a tiny fig leaf to try to lend the slightest appearance of decency to a naked power grab. As of today's revelations of the real scope of the wiretaps and the incredibly minuscule number of hits, it isn't even that anymore. It's time we started saying it emphatically. This program IS and always has been illegal. Period.
Update [2006-2-7 7:47:28 by Magorn]: I should Clarify one item in this diary. The 5,000 number only represents those actively eavesdropped on for an extended period of time. The raw number of intercepted communications/ scanned e-mail however, numbers in the 100,000's if not millions. see this diary for more detail
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