Meeting the Thought ProcessesGeneral Hayden is now head of CIA. As a general rule, he is probably a law-abiding person. That is, of course, if you agree with him on what the law says. Democratic Presidential nominee candidate, Senator Russ Feingold of Wisconsin, popular blogger and 1st Amendment lawyer Glenn Greenwald, along with many others, want to say "The NSA is violating FISA." But has the NSA violated FISA? FISA can't supersede the Constitution, and the thought processes of General Hayden (and who knows how many others, but certainly including former Attorney General John Ashcroft) have crafted a revolutionary new interpretation of the 4th Amendment. Something in me wishes more people cared about that. General Hayden first hinted at his "new Fourth Amendment" in response to questions from Jonathon Landay, a reporter. Most people couldn't get past the idea that Hayden didn't seem to know about "probable cause." What slipped by most people was his defense. He was saying probable cause does not matter to NSA, warrants don't matter to NSA as long as someone (who? good question!) says the search is "reasonable." I include this quote only in the name of completeness, feel free to skip to the meat of the matter beneath it.
Just so we are all clear, the text of the 4th Amendment reads as follows
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 --
No, actually -- the Fourth Amendment actually protects all of us against unreasonable search and seizure.
But the --
That's what it says.
But the measure is probable cause, I believe.
The amendment says unreasonable search and seizure.
But does it not say probable --
No. The amendment says --
The court standard, the legal standard --
-- unreasonable search and seizure.
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?
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.
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.Hayden laid his cards almost on the table, but I'm not sure Landay heard him. Hayden is not saying that the NSA now uses a "reasonably believe" standard to get a warrant to replace "probable cause," it is not getting warrants if it believes, in its own(!?!) judgement, that the search is reasonable. The whole point of warrants is that a government official can't simply do what they want when it comes to coming onto your property and taking your things. They must make a case before a Judge if they want to enter your castle or take your crown, yet Hayden is suggesting there is no review by any other branch of government when the NSA does a reasonable search. Although I am not a scholar of Constitutional history, my review of Supreme Court cases and other sources illustrates plainly that this is an entirely novel way to look at the Fourth Amendment. Hayden is reading it as if there is a period after the word "seizures" and the rest is only applicable if the Official doesn't think it is reasonable. By the way, my favorite Supreme Court case on the Fourth Amendment is still Boyd v US (1886) because of its eloquence and its expansive view of the 4th Amendment. Doubt me about this "novel" interpretation of the Fourth Amendment? I hope you do. But Michael Hayden makes it crystal clear before the Senate Select Committee on Intelligence during his confirmation hearing to become Director of Central Intelligence. To the transcript.
By the way, Senator Feinstein does not take up General Hayden on that offer. It sounds like Senator Feinstein simply thinks Hayden means that he is using a different standard before a court. Hayden obfuscates by talking about technology, but I think the thrust of his argument is clear, and his thought processes are plain and represent the theories of a powermad child. I want to be fair here, when talking about officials who think they can simply re-interpret the Constitution to suit their needs. I believe if a President were to forthrightly state "I believe a law or practice of the Government is proceeding in error, and from now on my administration will behave thusly" they are on reasonable grounds. After all, nothing stops Congress and a President from making a law that violates the Constitution, or even other laws. The moment a President does this, Congress and the Courts can begin taking steps if they disagree. If the administration is then found to be wrong, in a court of law, they can be subject to the penalties set forth for those who violate the law in question. The only other way to look at the Constitution is to say that the President must sue, in the Supreme Court, to change the law before his administration acts differently. I'm not confident that that is explicitly stated which way it has to be in the the Constitution or any laws, but I'd be interested to find out. In any event, the administration re-intepreting the laws in secret is tyrannical. But what this adminstration has done is to act in secret, and to decide for itself whether it needs to seek a warrant, because it decides for itself whether or not the search was reasonable. This is a clear violation of 220+ years of precedent. And that's their thought process, laid out. Similar to the FBI National Security Letters, a search order that an FBI officer can just say they want, without any warrant required, and a complete gag order is in place for those searched (unlike the normal warrant). According to the Washington Post, 30,000 a year are used by the FBI.
Do you believe the Fourth Amendment contains a probable cause standard?
It clearly contains a probable clause standard for warrants to conduct searches. There's the broader phraseology. And I've actually talked to some of my relatives who are in law school at the moment about the construction of the amendment, which talks in a broad sense about reasonableness, and then, after the comma, talks about the probable cause standards for warrants.
The approach we've taken at NSA is certainly not discounting at all, ma'am, the probable cause standard and need for probable cause for a warrant. But the standard that is most applicable to the operations of NSA is the standard of reasonableness -- you know, is this reasonable?
And I can elaborate a little bit more in closed session, but for example -- for example, if we have a technology that protects American privacy up to point X in the conduct of our normal foreign intelligence mission, it is reasonable, and therefore we are compelled, to use that technology.
When technology changes and we can actually protect privacy even more so with the new technology, "reasonable" just changed and we must go to the better technology for the protection of privacy. It's that reasonableness debate that informs our judgment.
Let me ask you: that "reasonable" standard is your standard. It's not necessarily the law because the Fourth Amendment very specifically states, in Judiciary, we had former FISA judges come before us. They said, in effect, in their court, the probable cause standard was really a reasonable suspicion standard.
Now you're creating a different standard which is just, as I understand it, just "reasonableness."
No, ma'am. I don't mean to do that. And Lord knows, I don't want to get deeply into this because, I mean, there are serious questions of law with people far more expert than I.
To give an example, purely illustrative and hypothetical, NSA, in the conduct of its foreign intelligence work, in the conduct of its foreign intelligence work, intercepts a communication from a known terrorist, let's say, in the Middle East. And the other end of that communication is in the United States.
One end of that communication involves a protected person. Everything NSA is doing is legal up to that point. It is targeting the foreign end. It has a legitimate reason for targeting it and so on.
But now, suddenly, we have bumped into the privacy rights of a protected person. Now, no warrant is involved. We don't go to a court.
Through procedures that have been approved by this committee, we must apply a standard to protecting the privacy of that individual.
And so there we -- we've touched the privacy of a protected person. But there are clear regulations held up to the reasonable standard of the Fourth Amendment, but not the warrant requirement in the amendment, ma'am.
Well, I'd like to debate that with you this afternoon, if I might.