Possible Out for Hayden 4th Flap?

White House Briefing

I wrote in yesterday's column that Hayden had misinterpreted the Fourth Amendment of the Constitution during a January speech , when he asserted that the standard for searches was "reasonableness," not "probable cause."

Several readers wrote in to say that Hayden was technically correct -- and that reasonableness is the standard for searches, while probable cause is the standard for warrants for such searches.

But my understanding is that the traditional reading of the amendment is that it is the obtaining of a warrant (which requires probable cause) that determines whether a search is reasonable or not.

There are some specified exceptions to the warrant requirement -- but historically they've been identified by the courts.

Having unilaterally decided they didn't need warrants, I'm assuming Hayden and his lawyers felt they could then take it upon themselves to decide what was reasonable or not. But that's not how it's supposed to work.

So I guess it's conceivable that Hayden's view is not an out-and-out misinterpretation of the Fourth Amendment. But at the very least, it's certainly an activist way of looking at things.

"Having unilaterally decided they didn't need warrants" is the operative phrase.

Here's Findlaw's discussion on electronic surveillance and the Fourth Amendment. You can't skim it, but you should read it. It's a tight description of the relevent opinions from the Olmstead case onward.

Katz v. United States seems to wrap it up.

Unanimously, the Court held that at least in cases of domestic subversive investigations, compliance with the warrant provisions of the Fourth Amendment was required. Whether or not a search was reasonable, wrote Justice Powell for the Court, was a question which derived much of its answer from the warrant clause; except in a few narrowly circumscribed classes of situations, only those searches conducted pursuant to warrants were reasonable. The Government's duty to preserve the national security did not override the gurarantee that before government could invade the privacy of its citizens it must present to a neutral magistrate evidence sufficient to support issuance of a warrant authorizing that invasion of privacy. This protection was even more needed in ''national security cases'' than in cases of ''ordinary'' crime, the Justice continued, inasmuch as the tendency of government so often is to regard opponents of its policies as a threat and hence to tread in areas protected by the First Amendment as well as by the Fourth. Rejected also was the argument that courts could not appreciate the intricacies of investigations in the area of national security nor preserve the secrecy which is required.

So as the courts have determined, only a small subset of searches made unpursuant to warrants are reasonable. Hayden's sidestep of warrants was unwarranted, particularly since the immediate need of wiretapping in the terrorism age is taken care of by the retroactive review allowed under the FISA court.

Short story? He's still a fascist.

Update:

The weaselly way this guy said what he said must be noted:

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.

What we are doing is reasonable. Weasel words. The General is counting on a common understanding of the word reasonable to fudge the issue (much the way a certain President used the term "sexual relations" to fudge another point). He takes the term "reasonable" outside its very legal definition, as already determined by Katz, by his words "and I'm not a lawyer, and don't want to become one". However, since the General is dealing with very murky legal issues, he might want to consult a lawyer pretty damn quickly.