CIA Nominee: “Probable Cause” not in 4th Amendment
Via, Radley Balko and Reason Online’s Hit and Run comes this rather disturbing transcript of Lt. General Hayden, Bush’s rumored nominee for the CIA, insists that “probable cause” is not in the Fourth Amendment.
Tim Cavanaugh has a short transcript,
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. 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 unreasonable search and seizure…
GEN. HAYDEN: … 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.
Well, the people at the N.S.A. may be most familiar with the Fourth Amendment, but clearly that isn’t saying much.
Here is how the Fourth Amendment reads,
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.–emphasis added
Clearly another fine Bush pick. Now I have to confess I’m coming around to the idea that Bush might just rank as one of the worst President’s of this century. Good gravy.
Update: Commenter Moe Lane has pointed to a full transcript of the comments by Lt. Gen. Hayden and they are included below,
GEN. MICHAEL HAYDEN: Sure. I didn’t craft the authorization. I am responding to a lawful order, alright? The Attorney General has averred to the lawfulness of the order. Just to be very clear, okay — and believe me, if there’s any amendment to the Constitution that employees at the National Security Agency is familiar with, it’s the fourth, alright? And it is a reasonableness standard in the Fourth Amendment. So, what you’ve raised to me — and I’m not a lawyer and don’t want to become one — but 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’re lawful because what it is we’re doing is reasonable.
Still this leaves me quite unimpressed. I see no reason to change my view of General Hayden at this point.