Water Man Spouts

Sunday, May 07, 2006

Amendment 4 Blues

There is speculation that President Bush is planning to nominate General Michael Hayden to serve as the next director of the CIA tomorrow. Hayden, the former Director of the NSA and the Principal Deputy Director of National Intelligence, seems like a pleasant fellow. I have no doubt that he is sincere in his patriotism. However, I think that the DCI should be familiar with the US Constitution, including the Bill of Rights.
On Monday, January 23, 2006, General Hayden met with the National Press Club to discuss concerns about the Bush administration's domestic spying policy. Before we take a closer look at some of the Q&A from that day, let's review Amendment 4 to the Constitution of the United States.
Amendment 4: 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 Warrents 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.
Now, to the press conference, in which General Hayden was attempting to answer journalists' questions about how the administration's domestic spying program appears to violate the 4th amendment. James Bamford asked General Hayden two questions towards the end of the conference.
JB: ... Just to clarify sort of what's been said ... the change from going around the FISA law was to -- one of them was to lower the standard from what they call for, which is basically probable cause to a reasonable basis; and then to take it away from a federal court judge, the FISA court judge, and hand it over to a shift supervisor at NSA. Is that what we're talking about here -- just for clarification?
GH: You got most of it right. The people who make the judgement, and the one you just referred to, there are only a handful of people at NSA who can make that decision. ... So in military terms, a senior colonel or general ooficer equivalent; and in professional terms, the people who know more about this than anyone else.
JB: Well, no, that wasn't the real question. The question I was asking, though, was since you lowered the standard, doesn't that decrease the protections of the U.S. citizens? ...
GH: ... I think you've accurately described the criteria under which this operates, and I think I at least tried to accurately describe a changed circumstance, threat to the nation, and why this approach -- limited, focused -- has been effective.
(At this point, the fellow serving as moderator recognized that James Bamford was not the person for General Hayden to be questioned by, if the "lower standards" issue was to be avoided. Mr. Hill announced, "Final question," and picked on Jonathan Landay from Knight Ridder.)
JL: ... 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 --
GH: No, actually -- the Fourth Amendment actually protects all of us against unreasonable search and seizure.
JL: But the --
GH: That's what it says.
JL: But the measure is probable cause, I believe.
GH:The amendment says unreasonable search and seizure.
JL: But does it not say probable --
GH: No. The amendment says --
JL: The court standard, the legal standard --
GH: --unreasonable search and seizure.

This press conference was filmed. Again, while no one questions that General Hayden is a good man, and a patriot, it was clear that he was not familiar enough with the Fourth Amendment to recognize a quote from it when he heard it. This may, in part, explain why he did not recognize that the NSA's domestic spying program was in violation of the U.S. Constitution. The news media, and progressives and liberals, should be using this film and the transcript to remind the American public, and the Congress, why General Hayden is not the correct choice for the position of Director of the Central Intelligence Agency


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