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Fourth Amendment Primer for General Michael Hayden

Guest Author - Tracey-Kay Caldwell

Quick, what does the Fourth Amendment to the constitution say? Don’t know, that’s OK. You are not the highest-ranking military intelligence officer in the armed services, you are also not the former director of the National Security Agency. General Michael Hayden is, and he does not know what the Fourth Amendment says. When taking a question from Knight Rider reporter, Jonathan Landay, it became quite clear, despite his assertion that he was a bit of an expert on the Fourth Amendment, he did not know what it said.

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: 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 in 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.
(unedited transcript below)

This is what the Fourth Amendment does say:

"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. "

This means that the government must prove to a judge, that they have probable cause (having more evidence for, than against) to reasonably believe you might be talking to terrorist, in order to get a warrant, so that they can legally spy on your telephone conversations. The Bush administration has already had to take remedial Ethics 101 training, maybe its time for remedial United States Constitution 101. After all it is little hard to fulfill the oath to: “the best of my ability, preserve, protect and defend the Constitution of the United States.", if the President and his advisors don’t know what‘s in the constitution. Unless, of course, The President is going to use as his defense that it was beyond the ability of him and his staff to know and understand what was in the constitution. After all, the oath only requires him to do it to the best of his ability.

The problem with this defense would be the 7/31/02 Justice Department statement opposing legislation by Sen. DeWine to lower the FISA court standard from “probable cause” to “reasonable basis”. The Justice Department argued that lowering the standard was unnecessary and possibly unconstitutional. They made this argument while our government was spying on oversea telephone conversations, with out a warrant and without probable cause, with only with a reasonable basis. All the while, knowing that their actions might be possibly unconstitutional.


Unedited Transcript(http://www.dni.gov/release_letter_012306.html):
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 in 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.

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Content copyright © 2014 by Tracey-Kay Caldwell. All rights reserved.
This content was written by Tracey-Kay Caldwell. If you wish to use this content in any manner, you need written permission. Contact BellaOnline Administration for details.

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