Wednesday, January 25, 2006

Quote of the Day: "If there's any amendment to the Constitution that employees of the National Security Agency are familiar with, it's the Fourth."

That statement was uttered on Monday by the former head of the National Security Agency, General Michael Hayden, as he tried to defend the warrantless spying program approved by President Bush. But based on the comments he made just before that, one has to wonder if he really is all that familiar with the Fourth Amendment to the Constitution.

Here is what the Fourth Amendment, a part of the Constitution's Bill of Rights, says:

"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."

You'll note the emphasis I've placed on the words, "probable cause". As you're about to see, there's a reason for that.

Near the end of the press conference, a journalist named Jonathon Landay from Knight Ridder asked General Hayden a question about the need for probable cause to exist in order to execute a search. Much to the surprise of Mr. Landay - and, no doubt, others in the room - the General indicated several times that the Fourth Amendment says nothing about "probable cause."

Crooks and Liars has the video up from Keith Olbermann's show. Here is the transcript of the exchange, as provided by Editor & Publisher:

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.

So, as one can see, the General needs a refresher course on the Fourth Amendment. How many others at the NSA and within the Bush administration need a similar refresher?

We've been led to believe that the Bush administration is full of people who believe in "strict constructionism" when it comes to the interpretation of the Constitution, and that they want to see jurists who have a similar outlook appointed to the bench. But now we have to wonder if they are, in fact, either confused or beholden to "strict constructionism" only when it suits their needs.

Whatever the case, one thing is clear: The attacks of 9/11/01 were like a family picnic compared to the attack being unleashed by our own government against the very document - and its ideals - that has framed and defined our nation's commitment to democracy for over 200 years. 9/11 was a great tragedy for this nation. But allowing our Constitution to be violated as a result will be the greatest tragedy of all.


At 1:35 PM, Blogger Charley Foster said...

But the general is correct. The standard for a warrantless search is reasonableness. The standard for a warrant to issue is probable cause. Constitutional scholar Akhil Reed Amar explains the reason for this. At the time of the founding the victim of an illegal search could sue the officer who conducted it. But if the officer obtained a warrant, the officer could not be sued and the victim had no recourse. That's why a warrantless search needed to be only reasonable - a victim of an illegal search had legal recourse - while a warrant could only be issued on probable cause since in that case the victim would have no recourse.

At 2:05 PM, Blogger DrewL said...

So, given that a lower threshold is required for a warrantless search, then why obtain a warrant for anything? That would seem to open the door to the government's pretty much doing as they please if they can rely on a flimsy argument of "reasonableness"? What constitutes "reasonable"? And who determines what is "reasonable"?

In addition, the General was stating - STATING - that probable cause is not mentioned in the Fourth Amendment. Clearly, that was an idiotic - not to mention incorrect - thing to say.

At 2:19 PM, Blogger Charley Foster said...

The Court ultimately decides what is reasonable, just as it ultimately decides the equally subjective and slippery definition of probable cause. Look at it this way. We can search people without a warrant before they get onto airplanes because it is reasonable to do so. However, if we required a warrant to search people before getting onto airplanes, probable cause would be required.

So the question here (and I'm not arguing this point one way or the other) is whether the searches that are the subject of the current controversy are reasonable.

At 3:45 PM, Blogger DrewL said...

Yeah, I see the point. And I suppose it would follow that, if it is reasonable to search someone at the airport before getting on a flight, that it would require probable cause - and thus a warrant - to go to a person's house to search before they even leave for the airport.

In the case of the wiretaps, the White House and the DoJ apparently feel that it is reasonable to listen in on phone conversations, whereas others may feel that such an action should require probable cause. I am of the latter belief, that eavesdropping on one's telephone conversation should not be considered to be "reasonable". That is invasive.

The airport example is one where the person has to submit to the search in order to board a flight; they can avoid the search by choosing not to fly. But is it reasonable to invade a phone conversation when the parties on either end are not submitting to the search as a pre-condition of making the phone call, as airline travelers are doing when they fly? I think that gets more to the heart of the issue. Should I have a right to a private conversation without the spectre of an eavesdropper listening in unless there is a higher standard of evidence - i.e. probable cause - to justify such surveillance? That would be my contention.

No doubt, the courts will sort this out at some level. And the appointments of Roberts and Alito to the SCOTUS may have a strong bearing on the outcome.


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