Gen. Hayden on the Fourth Amendment

Via E&P:

QUESTION: Jonathan Landay with Knight Ridder. I'd like to stay on the same issue, and that had to do with the standard by which you use to target your wiretaps. I'm no lawyer, but my understanding is that the Fourth Amendment of the Constitution specifies that you must have probable cause to be able to do a search that does not violate an American's right against unlawful searches and seizures. Do you use --
 
GEN. HAYDEN: No, actually -- the Fourth Amendment actually protects all of us against unreasonable search and seizure.
 
QUESTION: But the --
 
GEN. HAYDEN: That's what it says.
 
QUESTION: But the measure is probable cause, I believe.
 
GEN. HAYDEN: The amendment says unreasonable search and seizure.
 
QUESTION: But does it not say probable --
 
GEN. HAYDEN: No. The amendment says --
 
QUESTION: The court standard, the legal standard --
 
GEN. HAYDEN: -- unreasonable search and seizure.
 
QUESTION: The legal standard is probable cause, General. You used the terms just a few minutes ago, "We reasonably believe." And a FISA court, my understanding is, would not give you a warrant if you went before them and say "we reasonably believe"; you have to go to the FISA court, or the attorney general has to go to the FISA court and say, "we have probable cause."
 
And so what many people believe -- and I'd like you to respond to this -- is that what you've actually done is crafted a detour around the FISA court by creating a new standard of "reasonably believe" in place of probable cause because the FISA court will not give you a warrant based on reasonable belief, you have to show probable cause. Could you respond to that, please?
 
GEN. HAYDEN: Sure. I didn't craft the authorization. I am responding to a lawful order. All right? The attorney general has averred to the lawfulness of the order.
 
Just to be very clear -- and believe me, if there's any amendment to the Constitution that employees of the National Security Agency are familiar with, it's the Fourth. And it is a reasonableness standard in the Fourth Amendment. And so what you've raised to me -- and I'm not a lawyer, and don't want to become one -- what you've raised to me is, in terms of quoting the Fourth Amendment, is an issue of the Constitution. The constitutional standard is "reasonable." And we believe -- I am convinced that we are lawful because what it is we're doing is reasonable.

Comments

[norbizness]

We have a FOURTH amendment? Weird!

[DaveG]

You should quote, as part of this entry, the 4th Amendment itself, which specifically says that no warrant shall be issued without "probable cause." Otherwise, the whole point of the entry is lost on the reader, ie, General Hayden's complete ignorance about the content of the 4th Amendment despite the fact that he was in charge of the NSA spying operations, which required the obtaining of warrants.

[sdevlin]

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.

--------------

I just figured it out! If the claim it is reasonable, but do not get a warrant, they are not violating the 4th amendment, as the amendment does not say that a warrant needs to be issues for a search or seizure, only that if it is, it be based on probable cause.

[Roxanne]

That's why it pays to click through the links.

[The Liberal Avenger]

The guy from Knight-Ridder was being so unreasonable.

[Homer]

Look, it's pretty obvious none of you have a clue about the 4th amendment. It used to be the case that a warrant had to be issued for a search to be reasonable, or put another way, a search conducted in the absence of a warrant was presumptively unreasonable. But the "warrant requirement" is now so riddled with holes and exceptions that it is hardly a requirement at all. The trend is for it to be a pure reasonableness standard. Hayden is 100% correct. Sorry to burst your bubble. The "no warrants shall issue but upon probable cause" was to prevent the general warrants that had pissed off the colonists so much.

[Radio Head]

So glad you cleared that up, Homer. Here I've been thinking that "original intent" was the Gold Standard for conservatives. I missed the memo that said "except when it's rightie judges giving more power to cops and spies." Let's join the Rovians in spitting on "original intent!" I'm glad we're finally getting THAT lie of theirs off the table.

[eli]

then there's that pesky 2nd Amendment, where the founders intended for states to form their own militias

[Steve Brady]

I gotta go with Homer here. I just wrote a paper arguing that the NSA program would not survive judicial scrutiny, but nevertheless, there are lots of exceptions out there to the warrant requirement (preservation of evidence, physical protection of law enforcement personnel), and you don't have to be a non-originalist to find them.

More specifically, some courts and justices have found that the President's unilateral determination that electronic surveillance for gathering foreign intelligence is reasonable satisfies the Fourth Amendment. See Justice White's Concurrence in U.S. v. Katz, 389 U.S. 347, 363 and the Ninth Circuit in U.S. v. Buck, 548 F.2d 871, 875. Those were pre-FISA cases.

[Ace Pumpkin]

I don't know if it's valid to treat the Fourth Amendment as a Boolean formula, but that third "and" in the 4th Amendment is what gets me. If it were an "or", then I think "General Hayden and The Reasonables" might have a point.

To me, the Fourth Amendment requirement = X "and" Y.

Is this what the argument rests upon?

[pholidote]

Ace is closer to the truth than Steve or Homer. 1) No unreasonable searches; AND 2) Warrants only on probable cause.

Linking these two is the implied but not stated rule that warrantless searches are presumptively unreasonable, which remains good law.

Yes, there are holes, but generally what those holes amount to is either: A1) I could satisfy the requirement to get a warrant if only I had the time, but A2) if I wait, the matter will be moot OR B1) I have some reasonable suspicion, but not enough for a warrant; and B2) in order to investigate further, I need to pat this guy down for weapons or I might end up dead.

I have seen some resorts to "reasonableness" as a kind of trump card, for instance when police make a reasonable mistake in ascertaining consent.

But reasonableness is not the standard. To say so would be gravely misleading because the word "reasonable" is part of the "reasonable suspicion" test that is not generally good enough for a search.

You can never, for example, come into a guy's house based on reasonable suspicion. The home is a sanctuary for which probable cause is virtually always required -- so far, the only exception is in cases of hot pursuit.

Also, the word "reasonable" in itself is just too malleable. The idea behind the warrant requirement is to have a neutral magistrate assess reasonableness because the person seeking the right to search is presumed to be too involved to tell when he or she has gone beyond reasonable.

So, Hayden is not just dumb, and arrogant enough to insist he's right when he's wrong, but he's out to lunch on a vital point which makes him just plain scary.

And by the way, don't believe the claptrap about any precedent for the president's unilateral authority. It's bogus.

[Steve Brady]

Look, I have no idea what Hayden thinks about the Fourth Amendment, but it'll take someone more versed in the law than Landay, who also admits to not being a lawyer, to find out.

Analyzing an action under the 4th, first you have to decide whether that action is a "search" or a "seizure." Then you have to decide whether it's reasonable or not. For most things, reasonable means you need a warrant. The 4th then sets the standard for those warrants as being "probable cause."

But the general 4th amendment standard is simple reasonableness. For example, one court, the D.C. Circuit, has said that all warrantless electronic surveillance is per se unreasonable (Zweibon v. Mitchell, 516 F.2d 594 (1975)). But it could have ruled the other way, that for instance warrantless electronic surveillance to gather foreign intelligence is reasonable, and therefore no probable cause is needed. 4th Amendment satisfied.

Most of the circuit courts go that way. I happen to agree with the D.C. Circuit in this case. Hayden apparently agrees with the other circuits, so far as I can tell from that exchange.

[Andrew Horan]

Wow! I'll go with Pholidote. I taught 5th grade for 34 years, and my young charges and I covered the Bill of Rights, 4th amendment, among other things, each and every year. By God, none of 'em were lawyers but upon a few rereadings, THEY, having achieved the age of eleven could understand that "probable cause" makes the amendment operative. The other key words in Pholidote's comment are "Dumb and arrogant," applying both to the "decider," his administration, and the general. It's clear the president chooses boobs for key positions, since he works on the "birds of a feather" principle. Oh please,God, in these great United States, why are we all not in the streets...

[Andrew Horan]

Wow! I'll go with Pholidote. I taught 5th grade for 34 years, and my young charges and I covered the Bill of Rights, 4th amendment, among other things, each and every year. By God, none of 'em were lawyers but upon a few rereadings, THEY, having achieved the age of eleven could understand that "probable cause" makes the amendment operative. The other key words in Pholidote's comment are "Dumb and arrogant," applying both to the "decider," his administration, and the general. It's clear the president chooses boobs for key positions, since he works on the "birds of a feather" principle. Oh please,God, in these great United States, why are we all not in the streets...

[JS Narins]

I have felt that Ace Pumpkin was right.

It isn't simple, but if the reasonableness standard is met, and the FISA statute is inapplicable (which seems to be in most cases), then Hayden was basically saying that since we met reasonable, and FISA is not applicable, we are OK under the Constitution.

The trick for me is that whatever their reasoning for whatever their actions were, they are secret.

We are operating under a government which acts by secret rules, with secret prisons.

If the Bush administration believes that Congressional Act X unconstitutionally limits the President's power, then let them publicly state that this is the reason they are ignoring it. Certainly Congress could pass a law which violates the Constitution in this manner, and I don't believe it is solely the responsiblity of the Judiciary to take the positive role of determination.

Now, if the Bush administration makes their case, and acts upon it, and the Judiciary finds them to have wrongly decided (e.g. for expedient or political reasons) then they should be punished as violators of the law they asserted didn't apply.

[mark]

Andrew is right, fifth graders do get it. (Cute hand drawn graphics alert.)

[mark]

ummm... here