[IP] More on Hayden on NSA program

[David Farber]

-----Original Message-----
From: Tim Finin [mailto:finin at cs.umbc.edu]
Sent: Monday, January 23, 2006 9:13 PM
To: dave at 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.



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