I have serious issues with the possible nomination of Michael Hayden to the head post at the CIA. It's not because I fear the military having control over a civilian agency, which as Brad showed in his entry is a complete pranoid crock that has some uninformed Congressleeches wetting their panties.
My concern - as a member of the military and someone who has sworn to support and defend the Constitution of the United States - is the General's apparent disregard and ignorance of what the Fourth Amendment to the US Constitution says.
For the record, the Fourth Amendment to the US Constitution states:
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.
For the record, a recent dialogue between General Hayden and Knight Ridder's Jonathan Landay shows he's either ignorant about what the Fourth says, or just doesn't give a damn.
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. ... 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.
A couple of things here:
1 - The "unreasonable search and seizure" is just ONE of the things the Fourth protects us against. It also protects us and our possessions against search warrants that are arbitrarily issued for no good reason. It specifically says that no warrant shall be issued but upon probable cause, and specifying what the police are searching for and where.
2 - The "reasonableness" principle applies to search and seizure itself, not to authorization from the court to perform the search and seizure in the first place. For that, you need a valid warrant that shall not be issued unless there is PROBABLE CAUSE. The Warrant was intended to be a protection against unreasonable search and seizure.
So, no, I do not believe for a minute that the General was responding to a "lawful" order. Did he know it? He certainly was quick to qualify his reply with the fact that he's not a lawyer, nor did he wish to become one. All I know is that his grasp on what the Fourth says seems to be tenuous at best.