Probable Cause

What’s the difference between 110,000,000 people and 5,000 people?


In one way of looking at it, one of these numbers is 22,000 times as large as the other. But the real difference in these two groups of Americans that have had their phone records obtained by the US Government without prior court approval, is probable cause. From the US Constitution’s Fourth Amendment:

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.

Wikipedia has this:

In United States criminal law, probable cause (also referred to as reasonable cause) is the standard by which an officer or agent of the law has the grounds to obtain a warrant for, or as an exception to the warrant requirements for, making an arrest or conducting a personal or property search, etc. when criminal charges are being considered. It is also used to refer to the standard to which a grand jury believes that a crime has been committed.

In the aftermath of the 9/11 attacks, George W. Bush (and nearly everyone!) thought we would be attacked again immediately. He authorized a very limited program, with Congressional oversight and working through the FISA surveillance court, to monitor communications of a small number of individuals where the communication crossed the US border (i.e., one end was overseas). In order to qualify, at least one end of the conversation had to be a phone number or email address known to be associated with al Qaida or other known terrorists. Most of these contact numbers and emails were being retrieved from laptops and cellphones captured from al Qaida operatives in the field. Even this was troubling, as they were very concerned about overstepping. But the oversight committees approved the practice unanimously, from Jay Rockefeller to various other Democrats and Republicans. No one wanted to be the one to allow al Qaida to strike again.


When the New York Times decided to expose this operation years later, ithe surveillance had involved a maximum of about 500 people monitored in any one month, and a total of about 5,000 overall as suspects were added or dropped from the list over the years. Once the administration began surveillance, they had only a certain number of days to establish probable cause, and then must take the case to the FISA court to approve continuing. If they felt the case was weak, they dropped the suspect and did not apply.

This was one of the complaints raised: that the approval rate was nearly 100%. But the Bush DOJ was careful about what to ask for, and knew the level of evidence required.

Jay Rockefeller faked a letter making it seem that he had objected at the time. This was shown to be a ruse. All of the Democrats on the committee complaining that they “didn’t know” had nonetheless been fully briefed and had voted in favor. Of course.


The Washington Post and New York Times made this seem like high treason by President Bush himself; they put together a panel of current and retired FISA judges to condemn the practice, and this made front page news. However, it turns out that none of the judges actually condemned it; the transcript had been edited to make it seem that they were harshly critical of Bush, when at most a few were uncertain until they got a look at the actual procedural details. The media nevertheless trumpted this for months

The basic idea was that communication with a known al Qaida linked email account or phone number was probable cause to think you were involved with them. That was enough to allow “searches and seizures” of your “papers and effects” within the rights guaranteed by the Fourth Amendment.


Fast forward to today: Obama monitors the communication of more than a hundred million Americans, all communication from phone to email to interactions in social media sites. To make this technically more legitimate, they have based some of their data gathering offshore, so that they can grab the friends lists of hundreds of millions of people in the US and call it a communication that “went overseas.”

It has been shown that any NSA agent who is so inclined can listen in on conversations, and does. The amount of data gathered is in the hundreds of millions of records per day. The US technology players who deny complicity are subsequently shown to be fully on board, including Microsoft, which provides an email encryption service for your convenience, providing a courtesy copy of your emails to the NSA pre-encryption.


None of this is based upon probable cause at all. You are a subject, and information about you is being obtained so that “we’ll have a haystack to look in when we’re searching for a needle” (paraphrasing Congressional testimony). You are assumed to be so likely to be guilty that your rights are forfeit. In other words, to the Obama administration, “probable cause” means that you can fog a mirror. Every person in the country, and many around the world, become ensnared the moment they use their first cell phone or operate their first computer or tablet. Four-year-olds are tracked as potential terrorists.


And the New York Times and Washington Post are covering for this. It’s their people in office, so giant offenses may be overlooked. And the Fourth Amendment of the US Constitution? Why, that quaint old document was written before anyone had Twitter, don’t you know. “And Bush did it too!”

I am greatly concerned about the violations here, by both the Obama administration (of Constitutional rights) and by their news media (effectively a branch of the administration) who are assaulting our dignity and intelligence in order to facilitate the violation of our rights.

I wrote about the Bush NSA “scandal” at the time, and was challenged by people … who are now defending Obama’s NSA.

===|==============/ Keith DeHavelle

  • I’m right behind you.

    ===|==============/ Keith DeHavelle

  • Matthew Joseph Harrington

    This is harvey-rrit from livejournal. They have somehow screwed up my account, and I have opened one at dreamwidth under the same name, if you are disposed to see what odd notions I am still coming up with.