Tuesday, January 24, 2006

Public Service Announcement

The Fourth Amendment to the United States Constitution:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
Just thought, you know, some people might have forgotten what this one actually says in that quaint and old-fashioned sense of the word. And by "some people" I'm speaking about those who specifically took an oath to uphold the Fourth Amendment and the surrounding text that comprises the Constitution. For instance, "probable cause" and all that. Surprisingly, no mention of "reasonable basis to believe." My guess as to what this anachronistic Constitutional mumbo-jumbo means, as inspired by Karl Rove:

Let me be as clear as I can be. President Bush orders that if there is a reasonable basis to believe that al-Qaeda or someone associated with al-Qaeda or one of its affiliates is calling somebody in America, it is in our national security interest to know who they're calling and why - without the President providing any judicial oversight over such matters either before or after conducting surveillance on them. Some Democrats, federal statutes, Founding Fathers and actual authors of the dusty old Constitution clearly disagree.
[UPDATE: Matt Yglesias makes a good point - that we shouldn't lose the forest for my snarky little trees:

Meanwhile, I would add that talk of changing the burden of proof from "probable cause" to "reasonable basis" is largely a red herring. The important thing that changed was that the NSA shifted from a position where they needed to convince a judge that they had probable cause to one where they had to decide for themselves that they had a reasonable basis for initiating some wiretapping. There's a world of difference between a self-enforced standard and an externally-enforced one.
He's right. While the thought that the Executive Branch could unilaterally re-write the text of the Constitution is troubling no doubt, the more alarming aspect is the extra-Constitutional and extra-statutory push to make the Executive itself the arbiter of that standard. Whatever standard applies (it's conceivable that the Judiciary may be willing to bend to the "reasonable basis" standard) judicial oversight that such standard has been met is the key. Ultimately, standards of proof are meaningless unless there is some mechanism to enforce them. The Bush administration is taking the position that they will decide when they are playing by the rules. The Rule of Law that is. Frightening.]

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