A Fourth Amendment Exchange

Posted: May 08, 2006

Gen. Michael Hayden, the former National Security Agency director who is considered the leading candidate to become CIA director, discussed the Bush administration's warrantless domestic spying program with reporters Jan. 23 in Washington. Here is the text of his discussion with Jonathan S. Landay of The Inquirer Washington Bureau.

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 -

Hayden: No, actually - the Fourth Amendment actually protects all of us against unreasonable search and seizure.

Question: But the -

Hayden: That's what it says.

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

Hayden: The amendment says unreasonable search and seizure.

Question: But does it not say probable -

Hayden: No. The amendment says -

Question: The court standard, the legal standard -

Hayden: - unreasonable search and seizure.

Question: The legal standard is probable cause, General. You used the terms just a few minutes ago, "We reasonably believe." And a FISA [Foreign Intelligence Surveillance Act] court, my understanding is, would not give you a warrant if you went before them and say, "We reasonably believe"; you have to go to the FISA court, or the attorney general has to go to the FISA court and say, "We have probable cause." And so what many people believe - and I'd like you to respond to this - is that what you've actually done is crafted a detour around the FISA court by creating a new standard of "reasonably believe" in place of probable cause because the FISA court will not give you a warrant based on reasonable belief, you have to show probable cause. Could you respond to that, please?

Hayden: Sure. 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.

Text of 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.

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