Probable Cause and Reasonable Suspicion

So a judge in DC ruled that the NSA's grabbing of "metadata" was unconstitutional. I'm shocked. Not because I don't agree with the ruling but because apparently there is an official in DC that actually understands the US. Constitution.

It seems to me that a great deal of people do not understand what the term "probable cause" means and why it is in the Constitution. The U.S. government is prohibited from searching your private effects without a warrant. To qualify for a warrant the government must provide reasonable suspicion that you have committed crime. Similarly,in order to search you and your place agents of the government must have probable cause to do so. These two things, Reasonable Suspicion and Probable Cause, are the two things that keep the government in check. Those items are what are supposed to keep the government from going on "witch hunts" and invading the lives of private citizens.

As the NSA said on 60 minutes last Sunday, it is supposed to do foreign intelligence. Of course, under U.S. Law the NSA may search whomever and whatever it pleases. No one who is not a U.S. citizen is covered by constitutional guarantees of privacy. Nor are national governments or so called "enemies of the state". So nothing written here is a commentary on any of that. However; U.S. citizens are supposedly covered under such guarantees and the NSA has clearly and blatantly violated these guarantees.

The NSA has made the ridiculous argument that in terms of phone calls that it cannot get to the contents of a phone conversation. ANYONE with a Google Voice account knows full well that all the NSA has to do (and does, do not be fooled) is translate the conversation in real time to a small text file and store that. That whole "we don't have access to the contents, is for the simple minded among you. The next thing they claim is that it is OK for them to intercept so called "metadata".

Let us be clear, even the capturing of metadata of U.S. persons is a violation of reasonable suspicion and probable cause. Why? Such metadata is not "public". It is not the same as you and I walking down the street in plain view of a camera (and I have issues with cameras, but that's another issue for another time). It can be argued that if you conduct your business in a place where any Jamaal can see you, then a government agent, such as the police, can also observe your clearly public activities and take action if said public activity is illegal.

Your phone calls are not public. While someone may observe that you are making a phone call, no Jamaal on the street can know, simply by looking at you who you are calling. Whether you made or received the call, etc. Therefore your phone calls are not "public" data sitting in plain view and therefore ANY collection of that information iscovered (notice I did not say "should") under the Reasonable Suspicion and Probable Cause requirements. It is abundantly clear that the vast majority of persons in the US are not terrorism suspects. Therefore it is NOT reasonable suspicion to collect their private information which includes so called "meta-data".

The same thing applies to e-mail. I don't understand how any arm of the government thinks that the e-mails that a person sends is OK to collect for any reason at all that is not covered under Reasonable Suspicion or Probable Cause. Exactly what probable cause does the NSA or any agency have for collecting and storing your e-mail (including the "meta-data")? You have committed no crime. You have not been implicated in any crime. You have been implicated in no conspiracy to commit a crime. Why then are your personal effects being collected and stored by the government? The only argument is that you MIGHT be a terrorist. You MIGHT at some point in the future be implicated in a crime. You may in the future you MAY be implicated in a criminal conspiracy. And IF such "reasonable suspicion" were to arise, we ALREADY have access to your information. In other words the entire idea of law enforcement, namely investigations of crimes either already committed or in the process of being committed are being twisted and reversed in the name of "security".

And people think this is "reasonable".

Let me tell you what is "reasonable". Stop funding Al-Qaeda in Syria and elsewhere. Stop meddling in the internal affair of other countries. Stop allowing free entry of persons who don't understand or value constitutional freedoms. I guarantee you that doing these things will do more to promote "safety and security" than the trampling of so called "constitutionally guaranteed rights".

So lets be clear. I don't care what the NSA looks at and stores in regards to people who are not "US persons". Those persons have no coverage of constitutional guarantees. But U.S. Persons have so called "rights" that no government agency should be able to get around. get the warrant. Show the reasonable suspicion and probable cause, then collect away. Short of that, delete.

Put Up Or Shut Up Part 2

When I posted that it was for the NSA to put up or shut up I said that there were conditions they had to meet:

let him provide the proof, as in actual credible plots, not some rambling by someone who was pissed off. Not someone talking shit to his boys back home. Actual factual, in the works plots by people that had not been identified by any other legal, above board means or could not have been identified by any other above board means prior to the so called "terrorist act".

This is the litmus test. You don't get to do something just because it is "easier" or "more convenient". The point of the constitution is to restrain government. It should be relatively "difficult" for the government to spy on citizens. In any case the news today fails the above test spectacularly.

Mr. Joyce described a plot to blow up the New York Stock Exchange by a Kansas City man, whom the agency was able to identify because he was in contact with “an extremist” in Yemen who was under surveillance.

What was this? already under surveillance? If that is the case, then there is no need or justification for mass collection of user call data. The subject of this example was clearly within established law. No FISA court would even be needed since the Yemeni (or person in Yemen) was already under surveillance. This means that there was probable cause as required by the 4th Amendment to get a warrant for a tap on the target's phone.

So no, this example does not explain how the NSA program uncovered plots.

The second example is very murky:

. Mr. Joyce also talked about a San Diego man who planned to send financial support to a terrorist group in Somalia, and who was identified because the N.S.A. flagged his phone number as suspicious through its database of all domestic phone call logs, which was brought to light by Mr. Snowden’s disclosures.

Was this a "known" terrorist group? Who was the contact in Somalia? Unlike the previous example there is no claim of a foreign target that was already under surveillance. But this example is HIGHLY problematic. Number one, "sending financial support" is not an "imminent threat" to the US and therefore cannot even be claimed to have been thwarting ANYTHING dangerous at all.

Secondly this guy was "searched" and "seized" without a warrant. His phone number was "suspicious"? How do you get a "suspicious" phone number?

Seriously? An agent of the government can tap your shit because you have a "suspicious phone number"? I think this is the kind of activity the 4th amendment was designed to prevent. No lives were threatened by this person. No plot was unfolding and by this description there was no probable cause to look at this fellows call data.

It's pretty shocking to me that lawmakers who are oath bound to uphold the US Constitution did not hammer this guy over this example.

I won't even get into the bullshit claim about how 9-11 coulda, woulda been prevented. A number of the persons directly involved with 9-11 were known to authorities already and were allowed to board planes even though it was known that there was a plot involving planes underway.