Sunday, February 05, 2006

 

The Post announces a new legal standard on probable cause.

From today’s Washington Post: “The minimum legal definition of probable cause, said a government official who has studied the program closely, is that evidence used to support eavesdropping ought to turn out to be "right for one out of every two guys at least." “

Surveillance Net Yields Few Suspects

Huh? How long has this definition been around and why didn’t I hear of it in law school? At a minimum, it would be helpful if the Post would provide a single, independently available source for such a declaration. Instead, the Post gives us an unnamed government official…..and nothing else: – no background summary of the official’s education, experience, position in the government or political affiliation/sympathies (although I suspect that if this person could at all be spun as pro-administration, we would have read at least that much about him). The Post doesn’t even let us know just how they discovered that this official had “studied the program closely” (but I’m guessing the official is their lone source on this tidbit).

And even if we grant a “one out of every two guys” standard, the Post does not explain what that means. Does it mean that at least half of all eavesdropped conversations should lead to an arrest or foiled terrorist act? Would it be enough that at least one of every two conversations involved a verifiable name-and-face-to-the-voice member of Al Qaeda?

One long acknowledged test used in assessing probable cause is indicia of the reliability of the source (see Draper among others). The Post authors of this article, Barton Gellman, Dafna Linzer and Carol D. Leonnig, don’t meet that test.

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