The NSA Is Using The Wrong Legal Standard In Its Spy Program

Ok, so I am a complete dork and watched General Hayden, the Ariforce Commander in charge of the NSA spying, on C-Span last night. So, I am watching and Jonathan Landay of Knight Ridder stands up and askes a question about the legality of the program in light of the 4th 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. "

There are two clauses in the 4th Amendment. Reasonableness of searches and probable cause for warrents. Read seperately, there appears to be no need for a warrant for a search. But, it is not read seperately and the U.S. Supreme Court has imposed a presumptive warrant requirement for all searches and seizures, and has required probable cause in order for a warrantless search or seizure to be reasonable. the Supreme Court has routinely held that the probable cause clause is more impratnat than the reasonableness clause. Thus, the SC has interpreted warrentless searches and seizures as unreasonable unless there is probable cause.

That is why the Q & A with the General is so disturbing. First, he doesn't seem to remember that probable coause does appear in the 4th Amendment. Second, he dosen't know the legal relationship between the two. He is adamate that he knows the 4th amendment... appearantly not.

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.

QUESTION: But the --

GEN. HAYDEN: 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 --

QUESTION: The court standard, the legal standard --

GEN. 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 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?

GEN. 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.

It would be nice if the person in charge of running the program actually knew what the legal standard was, especially before going on television and making even more of a fool of the government. If we don't have someone running the show who even knows the legal standards, than how can we believe them that they are doing everything in there power to protect our civil liberties. Of course, the so called liberal Washington Post let him skate on it (Campaign To Justify Spying Intensifies).


Furthermore, the court has been pretty clear about warrantless eaves dropping (Katz v. United States, 389 U.S. 347).

- So long as an individual can justifiably expect that his conversation would remain private, his/her conversation is protected from "unreasonable search and seizure" by the Fourth Amendment.

- The Fourth Amendment protects people, not just places. Therefore, the rights of an individual can be violated, regardless of whether or not there is physical intrusion into any given area.

- A warrant is required before the government can execute a wiretap, and the warrant must be sufficiently limited in scope and duration.

The fact that Bush still has not been able to produce any further authority than the broad "Congress told me to fight a war on terror, so that's what I am doing," shows that there is no real legal justification for his actions. He may have been doing what he thought was best for the country, but good intentions still does not make it legal or him above the law