What’s happened to ‘probable cause’ in America?


Article first appeared in lewrockwell.com:

The Foreign Intelligence Surveillance Act (FISA) court has been issuing general warrants to the National Security Agency (NSA) since 1978, but it was not until last June that we learned that these general warrants have been executed upon the telephone calls, text messages, emails, bank records, utility bills and credit card bills of all persons in America since 2009.  

The constitutional requirement of probable cause is not political fancy; rather, it saves us from tyranny. Probable cause is a quantum of evidence that is sufficient to lead a neutral judge to conclude that the person about whom the evidence has been presented is more likely than not to possess further evidence of criminal behavior, or has more likely than not engaged in criminal behavior that is worthy of the government’s use of its investigatory tools such that the government may lawfully and morally invade that person’s natural right to privacy.

Robert S. Litt, general counsel for the Office of the Director of National Intelligence, which runs the NSA, engaged in a curious colloquy with members of the president’s Privacy and Civil Liberties Oversight Board. Litt complained that presenting probable cause about individuals to judges and then seeking search warrants from those judges to engage in surveillance of each of those individuals is too difficult.

This is a remarkable admission from the chief lawyer for the nation’s spies. He and the 60,000 NSA employees and vendors who have been spying on us have taken oaths to uphold the Constitution. There are no loopholes in their oaths. Each person’s oath is to the entire Constitution — whether compliance is easy or difficult. Yet the “too difficult” admission has far-reaching implications.

This must mean that the NSA itself acknowledges that it is seeking and executing general warrants because the warrants the Constitution requires are too difficult to obtain. Stated differently, the NSA knows it is violating the Fourth Amendment to the Constitution, because that amendment expressly forbids general warrants.

In my career as a lawyer, judge, law professor, author and television commentator, I have heard many excuses for violating the Constitution. I reject all of them when they come from one who has sworn to uphold the Constitution, yet I understand the intellectually honest excuses — like exigent circumstances — when they are based on duty. The NSA’s excuses are not intellectually honest, and they are not based on duty. They are based on laziness.

But there was more than met the eye in Litt’s testimony last week. Two days after Litt admitted to the use of general warrants, and while the president was in Europe, the White House leaked to the press its plans to curtail the massive NSA spying. Those plans, which would change only the appearance of what the NSA does but not its substance, have three parts.

The first change relieves the NSA of the need for general warrants to require delivery of massive amounts of data about innocent Americans as to which the NSA has no probable cause, because the second change requires the computer servers and telecoms to preserve their records — instead of the NSA preserving them — and make them “immediately” available to the NSA when it comes calling. And the third is the requirement of a warrant from a FISA judge before the NSA may access that stored data. But because that warrant is not based on probable cause but rather on NSA whim, it is a foregone conclusion that the general warrants for examination, as opposed to delivery, will be granted. The FISA court has granted well in excess of 99 % of the general warrants the NSA has sought.

Litt must have known what the White House planned to leak when he made his “too difficult” complaint, as it fits nicely with this new scheme. Yet the scheme itself, because it lacks the requirement of probable cause that the Constitution requires, is equally as unconstitutional and morally repugnant as what the NSA has been doing for five years. Moreover, the NSA will not exactly go hat in hand to the computer servers and telecoms once it wishes to hear telephone calls or read emails or credit card bills. Its agents will simply press a few buttons on their computers when they wish, and the data they seek will be made available to them.

These so-called changes should be rejected by Congress, which should overhaul the NSA instead. Hasn’t Congress seen enough? The NSA and the CIA spy on the courts, Congress, the military, the police and everyone in America. This keeps none of us safer. But it does lessen our freedom when those in whose hands we repose the Constitution for safekeeping look the other way. What other freedoms are slipping because Congress, too, thinks upholding the Constitution is too difficult?

If anyone has any doubt we’re in a battle to keep what little rights we have left, here’s more proof:

Illinois Supreme Court ruled  police can’t pull over a man looking for a woman.

A police officer who pulls over a car he believes is driven by a wanted woman must end the traffic stop once he realizes the driver is actually a man. The Illinois Supreme Court came to this conclusion last week in deciding 5 to 2 that Derrick A. Cummings had his constitutional rights violated when he was stopped and arrested on January 27, 2011.

Cummings had been driving a van that belonged to Pearlene Chattic through the city of Sterling. Although Cummings violated no traffic laws, Officer Shane Bland pulled behind and decided to run the van’s license plate.

“It appeared that the registration on the vehicle had expired,” Bland testified.

The registration, in fact, was perfectly valid, but Chattic, the vehicle’s owner, had an outstanding warrant for her arrest. Officer Bland tried looking in the van’s window while driving, but he could not tell whether a woman or man was behind the wheel. He hit his emergency lights and conducted a stop. As he approached the car on foot, he immediately realized his mistake. He proceeded with the stop anyway, asking Cummings for his license and registration.

Cummings did not have a license, and he was arrested. Prosecutors insisted that asking for a license during every traffic stop is “standard operating procedure” and that briefly continuing the traffic stop to ask Cummings to show identification was reasonable. The high court disagreed, saying just because it is legitimate to ask for ID in most cases does not mean it is acceptable to do so in all cases.

“To pass constitutional muster, a request for identification must be tethered to, and justified by, the reason for the stop,” Justice Mary Jane Theis wrote for the court majority. “Here, Officer Bland had reasonable suspicion that the van’s registration was expired, but that suspicion disappeared when he conducted a computer check. The check, however, revealed the outstanding arrest warrant for Chattic, the registered owner of the van, whom Bland knew was a woman. Officer Bland could not determine whether the driver of the van was a woman, so he had reasonable suspicion that the driver was subject to seizure. That suspicion, like the first, disappeared when he saw that the defendant was not a woman and, therefore, could not be Chattic. Requesting the defendant’s license impermissibly prolonged the stop because it was unrelated to the reason for the stop.”

U.S. State dept. is trolling (Spying) Twitter for possible terrorists:

The US State Department’s social media arms have been much busier over the past few monthstrolling terrorist sympathizers and radicalization groups online via Twitter and Facebook. “Trolling” probably isn’t the most precise term for the injection of countering views into previously uninterrupted feeds, but it does sort of sum up the State Dept’s end game, which is less set on converting would-be terrorists than simply preventing these accounts from running uninterrupted and unchallenged feeds.

Back in December of last year, Alberto Fernandez, who heads the State Dept.’s “Center for Strategic Counterterrorism Communications,” put it his way.

Gauging the effort’s effectiveness will be challenging, but even interrupting Al Qaeda’s unimpeded English-language efforts would amount to a modest success, officials said.

“They were setting the narrative and had a free shot at the audience for radicalizing people,” Mr. Fernandez said in an interview. “Nobody was calling them” on it.

The State Dept. uses analysts familiar with the many terrorist factions currently operating around the world, including some fluent in Arabic, Urdu, Somali and Punjabi, to provide countering arguments to assertions made by Twitter accounts and Facebook pages loosely tied to terrorist organizations.

The recent activities of State Dept.-sponsored Twitter accounts like Think Again Turn Away (whose avatar is the State Dept. insignia) have drawn some press, but the genesis of these efforts dates back much further than that.

This kind of thing isn’t unusual for the State Department. The Center for Strategic Counterterrorism Communications was established in 2010 to coordinate messaging to target violent extremism on the internet, especially that of Al Qaeda and affiliates. CSCC (an interagency center that is housed at State) initially focused on non-English online forums where the State Department saw jihadists attempting to recruit and raise money (message boards, comments on Al Jazeera Talk, etc.) Late last year, CSCCmade a move into English-language websites, with the small team of analysts and microbloggers expanding their fight on Facebook, YouTube, Twitter, and elsewhere, under the banner of the US State Department.

What the State Dept. is doing now leaves no doubt that this is a government-controlled operation. No effort is being made to hide the department’s involvement, which makes the counterpoints almost too easily dismissed and/or attacked to be considered truly effective.(A go-to counterargument to the State Dept.’s accusations of terrorist-related killings of women and children has been to point to the US’s drone program, something that has killed a number of women and children as well.)

Los Angeles police are spying on every car, truck & motorcycle without a warrant:

CA – Do you drive a car in the greater Los Angeles Metropolitan area? According to the L.A. Police Department and L.A. Sheriff’s Department, your car is part of a vast criminal investigation.

The agencies took a novel approach in the briefs they filed in EFF and the ACLU of Southern California’s California Public Records Act lawsuit seeking a week’s worth of Automatic License Plate Reader (ALPR) data. They have argued that “All [license plate] data is investigatory.” The fact that it may never be associated with a specific crime doesn’t matter.

This argument is completely counter to our criminal justice system, in which we assume law enforcement will not conduct an investigation unless there are some indicia of criminal activity. In fact, the Fourth Amendment was added to the U.S. Constitution exactly to prevent law enforcement from conducting mass, suspicionless investigations under “general warrants” that targeted no specific person or place and never expired.

Taken to an extreme, the agencies’ arguments would allow law enforcement to conduct around-the-clock surveillance on every aspect of our lives and store those records indefinitely on the off-chance they may aid in solving a crime at some previously undetermined date in the future. If the court accepts their arguments, the agencies would then be able to hide all this data from the public.



One thought on “What’s happened to ‘probable cause’ in America?

  1. You need to give credit to the author of this article and that would be Judge Andrew Napolitano not merely Lew Rockwell.com. Great article Judge!

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