Tuesday, January 24, 2006

Drum's "Unitary Congressional Theory"? 

Kevin Drum has a post up about General Hayden’s discussion of the standard the government is using to monitor people in the NSA spying scandal. The government’s standard is “a reasonable basis to believe” rather than the higher showing required for “probable cause.” Drum asks, “So what do you do if the FISA court won’t approve a lowered standard, Congress won’t change the law, and even the attorney general refuses to play ball? Answer: You go ahead and do what you want anyway.” I think this is a little muddled.

I don’t like Drum’s question because it implies that the options he outlines are realistic possibilities. Despite General Hayden’s understanding of the text of the Fourth Amendment, it explicitly says that “no Warrants shall issue, but upon probable cause.” So: 1) How could the FISA court “approve a lowered standard” in a manner inconsistent with the Fourth Amendment?; 2) How could Congress “change the law” in a manner inconsistent with the Fourth Amendment?; 3) How could the attorney general “play ball” in a manner inconsistent with the Fourth Amendment?

I don’t think they can, legally. The text is too plain. So, when General Hayden admits, according to the Times, that the difference in legal standards played a key role in determining whether to seek warrants from the FISA court, the General is revealing that the Bush Administration broke the law precisely because it knew the government’s conduct was forbidden by the Constitution.    

UPDATE: Drum has another post up about FISA. He writes, “the only problem was that both FISA and the attorney general required a standard of evidence they couldn’t meet before issuing a warrant. In other words, the only change necessary to make this program legal was an amendment to FISA modifying the circumstances necessary to issue certain kinds of warrants.”

Under my understanding, the Fourth Amendment sets probable cause as the minimum standard. It’s not like Congress or the attorney general can evade fundamental constitutional protections by instituting a lower standard like “a reasonable basis to believe” just because they feel like it. I repeat: the Constitution itself says “no Warrants shall issue, but upon probable cause.”

So, when Drum asks, “why didn't they ask Congress for that change?” My answer is that Congress doesn’t have the power to amend the Constitution by ordinary legislation. The Bush Administration was intent on spying on people without probable cause. Thus, the program could only proceed illegally.

What am I missing here?


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