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Defending Spy Program, General Reveals Shaky Grip on 4th Amendment

Editor and Publisher | January 24 2006

NEW YORK 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.

General Michael Hayden, principal deputy director of National Intelligence with the Office of National Intelligence, talked with reporters about the current controversy surrounding the National Security Agency's warrantless monitoring of communications of suspected al Qaeda terrorists. Hayden has been in this position since last April, but was NSA director when the NSA monitoring program began in 2001.

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 seemed to deny that the amendment included any such thing, or was simply ignoring it.

Here is the exchange, along with the entire Fourth Amendment at the end.

***

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.

***

Here's the Fourth Amendment: "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. "

A new Gallup poll released Monday showed that 51% of Americans said the administration was wrong to intercept conversations involving a party inside the U.S. without a warrant. In response to another question, 58% said they support the appointment of a special prosecutor to investigate the program.

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