Probable Cause: Lynchpin of the 4th Amendment

Except for the definition and mechanism of proving treason, no area of the Constitution addressing the rights of all persons when the government is pursuing them is more specific than the Fourth Amendment. The linchpin of that specificity is the requirement that the government demonstrate probable cause to a judge as a precondition to the judge issuing a search warrant. The other specific requirement is identity: The government must identify whose property it wishes to search or whose behavior it wishes to monitor, because the Fourth Amendment requires that all warrants specifically describe the place to be searched or the person or thing to be seized.

The principal reason for these requirements is the colonial revulsion over general warrants. A general warrant does not specifically describe the place to be searched or the person or thing to be seized, and it is not based on the probable cause of criminal behavior of the person targeted by the government.

With a general warrant, the government simply gets authority from a judge to search a haystack looking for a needle, and in the process, it may disturb and move all the straw it wants. Stated differently, a general warrant permits the government to intrude upon the privacy of persons as to whom it has no probable cause of criminal behavior and without stating what it is looking for.

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.

Last week, 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 percent 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?

About the author

Andrew P. Napolitano [send him mail], a former judge of the Superior Court of New Jersey, is the senior judicial analyst at Fox News Channel. Judge Napolitano has written seven books on the U.S. Constitution. The most recent is Theodore and Woodrow: How Two American Presidents Destroyed Constitutional Freedom. To find out more about Judge Napolitano and to read features by other Creators Syndicate writers and cartoonists, visit creators.com.

4 thoughts on “Probable Cause: Linchpin of the 4th Amendment”

Reply
March 27, 2014 at 5:16 am
David Andrews

I cannot blame the NSA for this fiasco! I see it as the purpose of the NSA – and the FBI and the CIA, and the TSA, and …, and… – to seek every advantage that they can find to do their job. I do blame:
1) The Attorney General of the United States – personally – as any request for search must be personally reviewed by him before being presented to the FISA;
2) the Chief Justice of the Supreme Court who appoints the 11 members of the FISA court and who should ensure that each and every Judge appointed is a strict constitutionalist and knows that his ONLY job is to speak for the rights of American Citizens;
3) the 11 judges of the FISA court that have not performed their assigned task within the bounds of 50USC, and should be evaluated for potential impeachment (failing to protect American Citizens’ rights is not good behavior);
4) The Congress of the United States who have oversight duties and have not reined in any of the above parties by cuts in appropriations for NSA and impeachment proceedings for the AG, CH-SCOTUS, and the 11 FISA Judges; and
5) you and me and the American voters who have consistently voted for representatives that have initiated, allowed and accelerated this usurping of the protected rights of citizens.

One other thought – I see the decision to force Telecomms to maintain the data as being an insurance move to insulate the NSA and the US Gov’t from the proposed nullification actions of Utah and Maryland and other states that are seeking to shut down the NSA facilities.

Wellarmed
I agree with the vast majority of your comments and observations Mr Andrews, but it seems all of your suggestions are premised on the ability of Congress to exercise its oversight authority. I am not certain if the ship has already overturned (on the Federal Level) and we the American people are simply standing on the hull waving a white flag of surrender.

I disagree with your position that there is no culpability on an individual level, but I am also not surprised to see mass resignation (protests) of employee/citizens who understand their employer is asking them to break the law, which they have sworn to uphold. Americans today value money and economic security over freedom. It is plain and simple. The vast majority simply need zeros added in font of the decimal point before you find the price at which they are willing to turn a blind eye.

I suggest everyone read the video feed transcript that Mr. Snowden gave from Russia to the EU. I found that transcript on Antiwar.com, and in that correspondence he confirmed what I had already suspected. GCHQ can and will continue to spy on Americans even if congress should begin to do its job, and put the brakes on the NSA’s actions. Mr Snowden also mentioned in that correspondence that GCHQ has engaged in industrial espionage and false flag operations, and I see no reason to believe that similar illegal actions do not happen within the NSA and the 17 other intelligence agencies that fall under the DIA command.

I must assume at this point that the NSA and other US intelligence agencies have what I call a push pull relationship with everyone who could exercise authority upon them. I would not rule out that every member of the 535 in Congress have a dossier with all of the relevant information to keep them in check, and that would include members of SCOTUS. The amount of data that Snowden commandeered was from what I have seen, is only about 1.3% of all classified information within the agency he worked for. It would barely show up as a sliver on a pie chart. I am fairly certain that what the American people have heard so far regarding unconstitutional actions is simply the tip of the iceberg, and asking for redress from within the Federal court system may prove to be impossible depending on how far this network extends into the fabric of our government.
David Andrews
My answer to your proposal of the white flag is the same as the Captain of the Bonhomme Richard in 1779 “I have not yet begun to fight”!

I believe I laid out a very good case for individual culpability – from the US AG to CJ-SCOTUS, individual Judges, members of Congress and ALL, yes every single american citizen. The only ones I do not blame are Clapper and his minions as I expect them to attempt every advantage they can gain, it is the nature of their work.

I, though, have faith in the American voter, I believe that when they are needed, the average citizen will rise to the call, put down their game controller and do the right thing. What is necessary is for organizations like to Tea party and this Tenth Amendment Center to continue to stand up and shout at the top of their voices of the evils that we see in Washington and the need for each of us to heed the message. Every person that reads these articles needs to share them on facebook and every other social website.

We can shut down the NSA! There are people running for Congress in 2014 that will cut funding to NSA, will bind their hands with regulations and will begin to take actions on Judges and the AG for the permissions that have been granted for NSA to take our privacy. We must identify these individuals and make sure that they are the ones that make it to Washington next term. What we need of you, Mr. WellArmed (how many elbows do your have?) is to take the word “impossible” out of your vocabulary.

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About arnash

“When you find yourself on the side of the majority, it’s time to pause and reflect.” - Mark Twain - Politicians and diapers - change 'em often, for the same reason. "Government is like a baby. An alimentary canal with a big appetite at one end and no sense of responsibility at the other." Ronald Reagan "Liberals claim to want to give a hearing to other views, but then are shocked and offended to discover that there are other views." William F. Buckley, Jr. “The trouble with the world is that the stupid are cocksure and the intelligent are full of doubt.” - Bertrand Russell The people are the masters of both Congress and the courts, not to overthrow the Constitution, but to overthrow the men who pervert it. Abraham Lincoln “Good people sleep peaceably in their beds at night only because rough men stand ready to do violence on their behalf.” - George Orwell “Satan will use a lake of truth to hide a pint of poison”.
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