January 24, 2006

Fighting Terrorists and Porn - Constitutionally Confused

General Michael V. Hayden ran the NSA while Bush was beginning his wiretapping program. You might be interested in the address he gave yesterday.

Someone was good enough to point out highlights to me, so I’ll do the same for you. (To my critics who say I am entirely stealing this post… well, they say steal from the best. Especially with an important message)

Within this address, Gen Hayden insists that what the Bush administration is doing is reasonable. If it’s reasonable, then it is lawful. His basis for this?

GEN. HAYDEN . . . 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.”

But the actual fourth amendment clarifies that probably cause is necessary to overcome the prohibition on searches.

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.

See here, where somebody tried to correct him. That is, tries to correct they guy who was running this program, and really ought to know what the fourth amendment says:

QUESTION: 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 —

GEN. HAYDEN: No, actually — the Fourth Amendment actually protects all of us against unreasonable search and seizure. That’s what it says.

QUESTION: But the measure is probable cause, I believe.

GEN. HAYDEN: The amendment says unreasonable search and seizure.

QUESTION: But does it not say probable —

GEN. HAYDEN: No. The amendment says unreasonable search and seizure… .

Finally, you’re supposed to nod along when he tells you that these unconstitutional warrantless searches are a good thing:

General Hayden: Had this program been in effect prior to 9/11, it is my professional judgment that we would have detected some of the 9/11 al Qaeda operatives in the United States, and we would have identified them as such.

Would have identified them?

An FBI informant was living with 2 of the 9/11 hijackers. Cells were identified. At the time, Ashcroft was too preoccupied trying to come up with ways to save you from internet porn to worry about what terrorists might do.

Now, if the terrorists had been searching for porn on Google…

Posted by James at January 24, 2006 10:00 AM
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Well, there's your Constitutional detour right there. These wiretaps are taking place outside the home and no warrants WERE issued. So, it's all perfectly legal. NOW can I work for FOX News?

Posted by: briwei at January 24, 2006 12:58 PM

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