Fourth Amendment Follies

As part of the whole Administration push to get the American people to swallow hook line and sinker the lie that the wiretapping of all communications going overseas without a warrant or even the rubber stamp of the secret court is not only a good thing but also allowed under the Constitution, they rolled out General Michael Hayden, who was the Top Dog at the NSA back in ’01 when Bush ordered the illegal wiretapping, to shore up the Administration’s case.

But things didn’t go so well.  See, it seems that the General doesn’t quite grasp the 4th Amendment.  Maybe he’s like the President, about whom an aide once said something along the lines of “he’s not good at thinking on his feet.”  I dunno.  But at least according to the transcripts the General made it through without giggling like a ditzy schoolgirl.  Here’s the transcript of the exchange, courtesty of http://www.editorandpublisher.com

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.

For those of you scoring at home, here is the 4th Amendment. Judge for yourself:


"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."

Chew on that one next time someone tells you to trust the government.  If they can’t even get the literal reading of the Bill of Rights correct, well, we’re all in the position to pretty much get fucked up the ass.



Tags: Fourth Amendment 4th Amendment search seizure wiretap NSA General Michael Hayden Bush