-----Original Message----- From: Tim Finin [mailto:finin@cs.umbc.edu] Sent: Monday, January 23, 2006 9:13 PM To: dave@farber.net Subject: More on Hayden on NSA program I was puzzled when I heard this exchange on the radio. General Hayden was clearly denying that "probable cause" was the standard for what is allowed in the fourth amendment. But the Constitution seems to say otherwise. It turns out that there's a trick involved, so pay close attention. Here's the exchange: Q: 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 -- HAYDEN: No, actually -- the Fourth Amendment actually protects all of us against unreasonable search and seizure. That's what it says. Q: But the measure is probable cause, I believe. HAYDEN: The amendment says unreasonable search and seizure. Q: But does it not say probable ... HAYDEN: No. The amendment says unreasonable search and seizure... 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." And here is 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. The trick is this -- "probable cause" is only needed to get a warrant for a search, so if you forgo asking for a warrant to be issued, you are home free. Slam dunk. This Law stuff is pretty neat. ------------------------------------- You are subscribed as eugen@leitl.org To manage your subscription, go to http://v2.listbox.com/member/?listname=ip Archives at: http://www.interesting-people.org/archives/interesting-people/ ----- End forwarded message ----- -- Eugen* Leitl <a href="http://leitl.org">leitl</a> http://leitl.org ______________________________________________________________ ICBM: 48.07100, 11.36820 http://www.ativel.com 8B29F6BE: 099D 78BA 2FD3 B014 B08A 7779 75B0 2443 8B29 F6BE [demime 1.01d removed an attachment of type application/pgp-signature which had a name of signature.asc]