For Bush's spying program, a bad poll, a new name and some false facts

Americans want an independent counsel to investigate.


Tim Grieve
January 24, 2006 7:13PM (UTC)

There's a new poll out on the president's warrantless spying program, and the results aren't so pretty for the White House. Fifty-one percent of Americans think the Bush administration was wrong to intercept conversations of U.S. citizens without warrants, and 58 percent say it's time to appoint a special prosecutor to investigate.

Of course, the poll was taken before George W. Bush unveiled a shiny new name for his spying program yesterday. "Warrantless spying on American citizens" was always a little unwieldy, so -- as the Associated Press reports -- the president is now calling it his "Terrorist Surveillance Program."

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If only it were as simple as that. The president and his supporters say that most Americans would want to know if someone inside this country is talking with members of al-Qaida. About that, we have no doubt. We also have no doubt that if administration officials had gone to the Foreign Intelligence Surveillance Court and said, "Hey, we have probable cause to believe that Mrs. Johnson in Sioux Falls has been ringing Ayman al-Zawahiri," a warrant would have issued forthwith.

But that's not what they did. They simply helped themselves to the authority to eavesdrop and didn't bother asking for a warrant, first or after the fact. And while the White House insists that it can be trusted to protect Americans' civil liberties all by itself, Gen. Michael Hayden -- the president's No. 2 man on intelligence -- pretty much conceded Monday that the National Security Agency wasn't, in fact, using the legal standard that the FISA court would have applied if the NSA had asked for a warrant as the law requires.

As Editor & Publisher has it, Knight Ridder reporter Jonathan Landay asked Hayden during a talk at the National Press Club Monday about the "probable cause" standard set forth in the Fourth Amendment. Hayden interrupted him. "No, actually -- the Fourth Amendment actually protects all of us against unreasonable search and seizure."

Landay: "But the --."

Hayden: "That's what it says."

Landay "But the measure is 'probable cause,' I believe --."

Hayden: "The amendment says 'unreasonable search and seizure.'"

Landay: "But does it not say 'probable --.'"

Hayden: "No. The amendment says ... 'unreasonable search and seizure.'"

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Landay: "The legal standard is 'probable cause,' General ... 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?"

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."

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For those keeping score at home, the Fourth Amendment says: "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."

It was an embarrassing episode for a man who once assured us that we shouldn't be concerned about the spying program because nobody's calls were monitored unless a "shift supervisor" at the NSA signed off first. But Hayden's constitutional dipsy-doodle wasn't the only truth-challenged moment for the Bush administration Monday.

Defending his spying program in a talk at Kansas State University Monday, Bush said: "You know, it's amazing that people say to me, 'Well, he was just breaking the law.' If I wanted to break the law, why was I briefing Congress?" But Bush didn't "brief Congress" on the spying program; members of his administration chose to brief only a handful of members of Congress, a decision that the Congressional Research Service says was probably, in and of itself, a violation of the law.

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Tim Grieve

Tim Grieve is a senior writer and the author of Salon's War Room blog.

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