It’s only the 4th Amendment

January 24, 2006

Gen. Michael Hayden, the principal deputy director of national intelligence, delivered remarks in DC yesterday in defense of Bush’s warrantless-search program, as part of a week-long political offensive to rally support for the White House initiative. To follow up on yesterday’s item about Hayden’s description of the scope of the program, it’s also worth noting that Gen. Hayden seems to have a fundamental misunderstanding of the 4th Amendment.

The former national director of the National Security Agency, in an appearance today before the National Press Club in Washington, D.C., today, appeared to be unfamiliar with the Fourth Amendment to the U.S. Constitution when pressed by a reporter with Knight Ridder’s Washington office — despite his claims that he was actually something of an expert on it. […]

As the last journalist to get in a question, Jonathan Landay, a well-regarded investigative reporter for Knight Ridder, noted that Gen. Hayden repeatedly referred to the Fourth Amendment’s search standard of “reasonableness” without mentioning that it also demands “probable cause.” Hayden seem to deny that the amendment included any such thing, or was simply ignoring it.

The transcript would be hilarious if it weren’t so disturbing. Landay noted the 4th Amendment has a provision establishing a “probable cause” standard for searches. Hayden seemed to deny the standard existed. (In case there was any doubt, Hayden is wrong.)

As if that weren’t embarrassing enough, Hayden added:

“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.'”

It might be tempting to believe that Hayden, as the principal deputy director of national intelligence, may not have to understand the legal standards of the 4th Amendment, which he clearly does not. But consider the context — the man the White House sent out to defend the warrantless-search program at the National Press Club, and who clearly has a role in overseeing the collection of intelligence on domestic communications, has no working knowledge of “probable cause” at all.

This isn’t encouraging news.

I don’t know that I am surprised the someone from the military shows a bit of ignorance on how the Constution applies in the real world. They may know about them but something gets lost in translation. The military has it’s own little guiding document – the UCMJ. What civilian law enforement can/can’d do and the rights of Americans is not necessarily the same as it is in the military environment.

  • I don’t know that I am surprised the someone from the military shows a bit of ignorance on how the Constution applies in the real world.

    I thought the same thing at first, but remember that Hayden is working in an NSA capacity now, not a Pentagon one. He even said yesterday that we should take his 4th-Amendment analysis seriously because of its significance in the NSA’s work.

    As a military general, I wouldn’t expect Hayden to know the 4th Amendment’s protections from memory. As a top NSA official who presents himself as something of an expert, I do.

  • In fact, they do have “probable cause” in these cases.

    Probably cause… George W Bushism wants it done that way.

  • I think the Administration is wrong here, but I don’t think Hayden is as wrong as some people think. The standard for a warrant is probably cause, but there is such a thing as a legal warrantless search, where the standard is more like “reasonableness.”

    IIRC, a “Terry” stop (where a police officer has a reasonable articulable suspicion that someone is engaging in or preparing to engage in a crime and stops the person to briefly ask them a couple of questions) is considered a warrantless seizure for purposes of the 4th Amendment, but is constitutional. There are other examples as well. I’m not saying that these wiretaps fit into one, I’m just saying that not every search requires a warrant.

    Perhaps someone else can fill in details or correct me.

  • 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.

    Can’t we all just imagine Gonzalez telling us that the majority of the 4th Amendment doesn’t apply in this case because they never sought a warrant?

    🙁

  • I tend to believe that Hayden knows he’s wrong, but the message/talking point to get out and make uninformed people believe is that the “reasonableness” is the only standard, thus lowering the standard for every one of our privacy and the governments ability to interfere and spy on us all.

    I tend to believe this in general regarding this administration. They know they are wrong in the real world but are simply trying to create their own reality and make everyone else (or at least a majority) believe that reality.

  • I would like to know if there are any court cases out there that have attempted to define what “reasonableness” means. Or in the case of the Constitution, “unreasonable”. I have always tended to read the Fourth Amendment as all searches and seizures by the government required a warrant, as “probable cause” constituted the “reason” for the search. Am I wrong? Has the Supreme Court decided differently on this matter?

    If there are any lawyers out there, I would love to hear from you and get case references.

  • Whether the standard is “probable” or “reasonable” there must be information before hand upon which to make the judgement about targeting individuals. As I understand it the decision to monitor a call is made on the fly by NSA shift supervisors. It is also said that the targets are known terrorists. It is hard to reconcile these two statements. The first suggests that the information required to make the judgement comes from within the NSA. This would mean, since all the NSA does is monitor communications, that some type of observation must be made on a communications data stream in order to justify some type of observation on a communications data stream. Rather circular wouldn’t you agree? The second suggests that there is a standing list of people who are subject to observation presumably based on the “reasonable” standard. In this case there doesn’t appear to any decision making role for the shift supervisor beyond determining if the individual is on the list.

    I suppose I could dream up scenarios in which these statements can easily be reconciled. On possibility is that there is not a standing list but rather a standing set of criteria which the administration views as “reasonably” associated with terrorist. In this case, the supervisor must decide if those criteria are met for monitoring the communications. This speculation is beside the point, however; since it does not bring us any closer to the truth.

    My point in all of this is that the pr nonsense is giving us small parts of a puzzle. When you try assemble the bits and pieces of the puzzle they don’t easily go together. You cannot be sure if it’s because there aren’t enough pieces or if some of the pieces don’t belong. Certainly, based on this administration’s record misinformation is a distinct possibility. We must demand a meaningful investigation so that we may have a complete and accurate picture of what is going on.

  • Gridlock:

    Terry v. Ohio is the biggie in this area.

    Here’s a decent summary of Terry and some subsequent decisions.

    Here too.

    What the Administration is trying to hang its argument on is the “reasonable suspicion” standard of Terry, which to my knowledge, has always involved some type of first-hand observation, as in the cop notices some funny business afoot.

    The problem that the Administration is having is that in order to be reasonable, the suspicion has to have a particularized and objective basis.

    It can’t be just because you fucking felt like it.

  • The error we’re all making is to presume the government is eager to go about its job of protecting us from terrorist attack. In other words, that the government is competent.

    Competence isn’t the M.O. of this administration. Venal corruption is.

    Let’s suppose they didn’t get warrants not because they wanted to do a lot of spying on bad guys, but because they intended to sell intelligence to the highest contributor. Wanna spy on your neighbor? Spy on your competition? Come right on over, bring your money, we’ll take care of you.

    If that’s the case, then we can presume the program, corrupt & incompetent as all Bush programs have been, has since been filled with foreign operators: Israeli, Iraqi, Iranian, Chinese, North Korean, Russian, (Al Qaeda?) maybe even Cuban & Venezuelan.

    So of course Rove & Co. are fighting back, making this yet another test of Democratic patiotism. Anything to keep us from wondering if they sold intelligence the way they’ve sold everything else.

  • Thanks knobboy, that helps.

    Though, I see that most of the Admin’s argument is that the Constitution allows the President to do anything “reasonable” to protect the nation as Commander in Chief.
    Kind of a stretch…

  • Though, I see that most of the Admin’s argument is that the Constitution allows the President to do anything “reasonable” to protect the nation as Commander in Chief.

    I think what you meant to say is that the Admin’s argument is anything the President does as Commander in Chief is “reasonable” because he is trying to protect the nation.

  • Glenn Greenwald has a scope. Senator DeWine introduced an amendment in June of 2002 which would have reduced the standard for eavesdropping on non-US persons from “probable” to “reasonable.” The amendment didn’t pass. More damning, the DOJ opposed the amendment on two grounds: it wasn’t needed and it was likely unconstitutional.

  • I write to respond to some of the misunderstanding in this thread about the scope and meaning of the 4th amendment. I am a lawyer and a judicial employee.

    Reference was made to the seminal case of Terry v. Ohio, wherein the U.S. Supreme Court upheld the principle that police may conduct investigatory stops based upon a reasonable and articulable suspicion of criminal activity afoot. Every aspect of such a stop must be conducted reasonably, including the length of breadth of investigation. An officer may also pat a suspect down (frisk) for weapons if there is an objectively reasonable justification for suspecting a presence of a weapon, on the exterior of the suspect’s clothing, and may then reach into the suspect’s clothing if he feels what objectively appears to be a weapon. A ‘Terry’ stop is neither grounds for a search nor a seizure, except for the limited purpose of a frisk (if sufficient grounds exist to do so), and then only for the limited purpose of retrieving a weapon. This is accepted primarily to preserve officer safety in the field. No arrest or seizure of other evidence (such as drug paraphernalia) can be upheld upon Terry stop grounds alone.

    Except for the Terry stop situation, probable cause is required for a search or seizure. Probable cause is an objectively reasonable basis to believe a crime has been committed, is now being committed, or that evidence of a crime is in/on the person or place to be searched. Probable cause must be supported by objectively reasonable evidence, such as affidavits by persons with personal knowledge of the facts set forth as the basis for probable cause. There are technical requirements of specificity and particularity in establishing probable cause, so as to limit the scope of the permitted search and seizure.

    However, that is not to say that a warrant is necessarily required for either search or seizure by the 4th amd. An officer may arrest a suspect in a public place upon probable cause to believe a crime is being committed, or if one has been committed and the suspect is in immediate flight therefrom. The standard is the same as that which an officer would be required to set forth to obtain a judicial warrant. An officer may arrest a suspect upon probable cause (without a warrant) even in a private residence if he is in ‘hot pursuit’ of the suspect prior to entering the residence.

    The warrant requirement is applicable to places where a person has a reasonable expectation of privacy. Such places include locked containers in a car which are not immediately accessible to occupants, a phone booth with a closing door (but not an open one as you usually find today)and most commonly private residences. In that situation, police may not enter (or wiretap) to conduct a search or seizure (of evidence or a person) without a warrant.

    As for a precise definition of the ‘reasonableness’ standard, it is essentially an objective standard of that which a reasonable member of the community would expect or subscribe to . Many of the greatest jurists in American history have commented on how difficult this ‘objective’ standard is to pin down, and how truly ‘subjective’ it really is.

    By my view, the good General is somewhat correct that reasonableness underpins most 4th amendment analysis, although he misses most of the point. He and others in his position take an oath to support and defend the constitution, but how can one accomplish this without first taking the time to understand it? I view this as a sad failure of most of the Bush administration.

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