Saturday, May 13, 2006

Just a short note on the NSA phone database issue:

The timing of this latest news is kind of odd, isn't it? One might almost suspect that someone leaked this information in an effort to derail Michael Hayden's nomination to become CIA chief. Hayden, after all, is the guy who knows where all the bodies are buried in the NSA domestic spying program. The news that the agency he once ran has been keeping track of every American's phone calls might cause his nomination hearings to be slightly more interesting than I initially expected. Normally, this type of thing might be a disaster for anyone's chances of a nomination --- but then again we must remember that this is the Senate we're talking about here.

It's mostly made up of a bunch of spineless jelly fish who wouldn't dare to speak up or risk offending the president for fear of losing their perks and position. If W. used an executive order to appoint a horse to be a Senator, Trent Lott would run right out and buy a saltlick for his newest colleague. Sure, there'll probably be some tough questioning by the usual suspects like Leahy and Kennedy, but that will be all.

I hope someone asks Hayden about his views on the Fourth Amendment. An Inquirer reporter got him into a conversation about reasonable search and seizures and Hayden's knowledge of the law proved to be little shaky.

For instance, some might think that the Fourth Amendment says "no Warrants shall issue, but upon probable cause" as the only legal basis for a search, but Hayden likes the other part that says no "unreasonable" searches or seizures better. He just skips right past whole "warrant" part. According to him, the NSA domestic spying program is "reasonable" and therefore legal. "The constitutional standard is 'reasonable.' And we believe --- I am convinced that we are lawful because what we're doing is reasonable."

See, it's really as simple as that. Of course, this was before the whole keeping-track-of-every-phone-call-ever issue came up. The Fourth Amendment calls for every search to be based on probable cause "supported by oath or affirmation and particularly describing place to be searched, and the persons or things to be seized." Sucking up every single phone call and putting them into a colossal data mining machine sort of sidesteps that pesky probable cause requirement.

Just because the government wants to do something doesn't make it legal. Just because a program is classified doesn't make it legal either, as some in Congress think.


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