The reasonable test. Reasonableness. That's the threshold test Bush and his lawyer Gonzales use to determine whether to spy on Americans. 'Reasonableness' is also the standard that Bush's nominee for the CIA, Gen. Hayden, has used to defend the warrant-less wiretapping and data-mining of U.S. citizens, in blatant disregard for the FISA law set in place by Sen. Kennedy and others in response to unwarranted surveillance in the '60's and the '70's.
Is the FISA law reasonable?
FISA isn't exactly an institution which should hearten those who advocate open government. The FBI and the NSA have used the act to set up a secret courts and have perverted the act to conduct surveillance for domestic criminal investigations in addition to their foreign counterintelligence probes.
The ACLU has asked the Supreme Court to review whether the Constitution and the Patriot Act permitted the government to use looser foreign intelligence standards to conduct surveillance in criminal investigations in the United States. The Supreme Court refused that request. In an appeal, the ACLU argued that,"These fundamental issues should not be finally by courts that sit in secret, do not ordinarily publish their decisions, and allow only the government to appear before them."
The ACLU and its supporters have asserted that some of their members and many other Americans are currently subject to illegal surveillance, noting that the FBI has already targeted its members in numerous other ways. Under the FISA statute, a U.S. citizen may be subject to a FISA surveillance order for political statements and views that are determined to be unpopular by the secret Court of Review.
According to the ACLU:
- 8,000 Arab and South Asian immigrants have been interrogated because of their religion or ethnic background, not because of actual wrongdoing.
- Thousands of men, mostly of Arab and South Asian origin, have been held in secretive federal custody for weeks and months, sometimes without any charges filed against them. The government has refused to publish their names and whereabouts, even when ordered to do so by the courts.
- The press and the public have been barred from immigration court hearings of those detained after September 11th and the courts are ordered to keep secret even that the hearings are taking place.
- The government is allowed to monitor communications between federal detainees and their lawyers, destroying the attorney-client privilege and threatening the right to counsel.
- New Attorney General Guidelines allow FBI spying on religious and political organizations and individuals without having evidence of wrongdoing.
- President Bush has ordered military commissions to be set up to try suspected terrorists who are not citizens. They could convict based on hearsay and secret evidence by only two-thirds vote. (It was reported this week that Bush is looking to speed up the Court's determination of the legality of the commissions.)
- American citizens suspected of terrorism are being held indefinitely in military custody without being charged and without access to lawyers.
The FISA courts are, despite their misuse, the primary check on the Executive branch's and their agents' ambitions to eavesdrop and muckrake into the lives of our country's citizens for reasons of national security or for other more nefarious purposes. Before the president can get authority from the FISA court they need to make their case. Probable cause is the standard that the law proscribes for the court to use in determining whether to grant authority to conduct surveillance on U.S. citizens.
But, the Bush administration's advocates have coined their own standard outside of the FISA courts of 'reasonableness' which is a decidedly lower threshold than the judges would ever allow. This is Gen. Hayden on the fourth amendment from the National Press Club in January 2006 in his exchange with a reporter:
QUESTION: The legal standard is probable cause, General. You used the terms just a few minutes ago, "We reasonably believe." And a FISA court, my understanding is, would not give you a warrant if you went before them and say "we reasonably believe"; you have to go to the FISA court, or the attorney general has to go to the FISA court and say, "we have probable cause."
And so what many people believe -- and I'd like you to respond to this -- is that what you've actually done is crafted a detour around the FISA court by creating a new standard of "reasonably believe" in place of probable cause because the FISA court will not give you a warrant based on reasonable belief, you have to show probable cause. Could you respond to that, please?
GEN. HAYDEN: Sure. I didn't craft the authorization. I am responding to a lawful order. All right? The attorney general has averred to the lawfulness of the order.
Just to be very clear -- and believe me, if there's any amendment to the Constitution that employees of the National Security Agency are familiar with, it's the Fourth. And it is a reasonableness standard in the Fourth Amendment. And so what you've raised to me -- and I'm not a lawyer, and don't want to become one -- what you've raised to me is, in terms of quoting the Fourth Amendment, is an issue of the Constitution. The constitutional standard is "reasonable." And we believe -- I am convinced that we are lawful because what it is we're doing is reasonable.
A quick read of the fourth amendment, however, doesn't jibe with Gen. Hayden's reliance on the 'reasonableness' standard in his defense of his boss. The amendment states that:
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