May 9, 2006


General Knowledge: The battle over the Hayden nomination (Fred Kaplan, May 8, 2006, Slate)

This leaves one further issue that may be genuinely troublesome: Hayden's execution of President Bush's secret domestic-surveillance program. On the one hand, during his tenure as NSA director, from 1999 to 2005, Hayden was insistent, in public and in private, on the NSA's role as interceptor of foreign signals intelligence and on its need to stay away from phone calls, e-mails, and so forth within the United States. In a National Press Club speech in January, shortly after revelations of Bush's secret program, Hayden argued that he had done nothing improper:

The lawfulness of the actual authority was reviewed by lawyers at the Department of Justice and the White House and was approved by the Attorney General. … Frankly, there's a certain sense of sufficiency here—authorized by the president, duly ordered.

A decent case could be made that Hayden was following orders that he was assured were lawful.

On the other hand, during the question-and-answer period of that speech, Jonathan Landay of Knight-Ridder pointed out that the Fourth Amendment requires that a warrant—whether to search Americans' homes or intercept their communications—must be preceded by a finding of "probable cause," which the NSA intercepts under question did not involve.

Here is the subsequent exchange:

Hayden: No actually, the Fourth Amendment actually protects all of us against "unreasonable search and seizure."

Landay: But the measure is "probable cause," I believe.

Hayden: The amendment says "unreasonable search and seizure."

Landay: But does it not say—

Hayden: No. The amendment says—

Landay: The court standard, the legal standard—

Hayden: —unreasonable search and seizure.

This is startling. Elsewhere in the speech, Hayden said, "If there's any amendment to the Constitution that employees of the National Security Agency are familiar with, it's the Fourth." And he doesn't know that it requires "probable cause" as the criterion for "reasonable" search? (To read the amendment for yourself, click here.)

Hayden may have dug his own hole with this one, and it is equally amazing that the Bush White House—already beset with Republican lawmakers seeking to distance themselves from an increasingly unpopular president—didn't conduct due diligence on this point before nominating Hayden.

Yeah, boy, how did Karl Rove leave them wide open to those attacks from Democrats on how unfair the Administration is to terrorists?

Posted by Orrin Judd at May 9, 2006 2:01 PM

Kaplan is under the misapprehension that a search or seizure can't take place without a warrant. The function of a warrant is to immunize the police against lawsuits or criminal prosecutions charging unlawful seizures.

I wonder how he thinks criminals get arrested (a seizure of their persons). If a cop witnesses a murder, should he go to the nearest courtroom for a warrant, or arrest the villain?

Posted by: pj at May 9, 2006 2:38 PM

As PJ pointed out, Kaplan is wrong on the law. He is also misleading in his paraphrase of the exchange.

Kaplan says that:
Jonathan Landay of Knight-Ridder pointed out that the Fourth Amendment requires that a warrantwhether to search Americans' homes or intercept their communicationsmust be preceded by a finding of "probable cause,"

That is not what Landay asked. He didnt mention warrants at all. His initial question was actually:

Im 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 Americans right against unlawful searches and seizures.

As I read the exchange, the General was correct.

Landays question was incorrect in its premise. The probable cause requirement refers to warrants only. The general protection is found is the first clause of the 4th which says

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated

Again, as PJ just stated, a warrantless search (which is what the discussion was about) can be valid without probable clause. This is why inventory searches, DUI roadblocks and so-called Terry stops are constitutional.

Posted by: Bob at May 9, 2006 2:53 PM

I'd say the Democrats have got the Al Qaeda/Hamas vote all wrapped up.

Posted by: Dreadnought at May 9, 2006 4:08 PM

Thanks, Bob, for a clear description of the law.

I might add that historically, warrants were much more rarely issued than they are today. The Founders thought warrants prone to abuse and that they should be rarely given out, thus they wrote into the Constitution a high standard for warrant issuance and a much lower standard for searching and seizing.

In our litigious society, police prefer to have warrants, and perhaps judges prefer to have more influence over police, so warrants have come into wide use.

Posted by: pj at May 9, 2006 5:05 PM

Kaplan updates:

"Several lawyers have persuaded me that I was excessively dismissive of Gen. Hayden's take on the Fourth Amendment. Knight-Ridder's Jonathan Landay and I are right that the amendment requires "probable cause" as the basis for a warrant. However, a stack of case law allows certain warrantless searches and seizures, as long as they're not deemed "unreasonable.""

If by "excessively dismissive", we mean "wrong".

Besides, collaboration is not crime, but an act of war. And war is not waged with warrants.

Posted by: Noel at May 9, 2006 11:15 PM