THE BLOG

Gen. Michael Hayden: Unreasonable Nominee for Probable Cause

The Fourth Amendment to the Constitution of the United States:

"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."

AN ALARMING IGNORANCE

A Martian nerd of a figure, Air Force Gen. Michael Hayden, is likely to be nominated to be the new director of the CIA. The former director of the National Security Agency, and now deputy to the director of national intelligence (DNI), has been the most out-front and aggressive defender of the NSA's domestic surveillance program. He was NSA director when the spying program was launched in 2001. On January 23, 2006, in an appearance before the National Press Club, Hayden acted out an alarming ignorance of the Fourth Amendment.

The last journalist to get in a question at the Press Club, Jonathan Landay, an investigative reporter for Knight-Ridder, observed that Gen. Hayden repeatedly referred to the Fourth Amendment's search standard of "reasonableness" without mentioning that it also requires "probable cause" (supported by affirmation). Hayden seemed to deny that the amendment included any such thing.

This caused Landay to reply, "The legal standard is probable cause, General."

Here are excerpts from the exchange, as reported in Editor&Publisher:

QUESTION: Jonathan Landay with Knight Ridder. [Regarding] the standard...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.

GEN. HAYDEN: No, actually -- the Fourth Amendment actually protects all of us against 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 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?

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. [I]t is a reasonableness standard in the Fourth Amendment. And so what you've raised to me -- and I'm not a lawyer-- 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." ...I am convinced that we are lawful because what it is we're doing is reasonable.

HAYDEN a GOSS at the NSA?

Porter Goss has been criticized as director of the Central Intelligence Agency for causing some of the best professional analysts to leave, contributing to institutional chaos, and generally demoralizing the Agency. This is strikingly comparable to an indictment of Hayden's seven-year tenure as director of this country's premier technical intelligence collection bureaucracy. A sitcom about NSA could be called "Hayden's Heroes" (as in Hogan) with a twist.

The twist is that Hayden, through an unprecedented public relations campaign aimed at the media and Congress, succeeded in convincing the public that NSA is an ace intelligence agency employing new communications technologies to track indications and warnings of global terrorism. But some NSA professionals have been cited in published reports that provide a quite different story. They point to an agency wracked by poor morale, questionable outsourcing of contracts that have the potential to compromise the most sensitive sources and methods, and an independent intelligence agency being too close to the White House.

The DUTY of the SENATE

Hayden's shocking extra-legal arrogance on display at the National Press Club undoubtedly appeals to the "unitary executive" minds of President Bush, Vice President Cheney, and former White House counsel, now Attorney General, Alberto Gonzales. However, it is not known if Hayden, as NSA director back in 2001, responded to a lawful order from the White House, or the Justice Department, or the Defense Department, that authorized him to act.

Had he, in fact, acted on his own to institute a covert, warrantless, pervasive, domestic electronic eavesdropping program, in the aftermath of 9/11, and then presented it as a fait accompli to a White House he was all too eager to please? He certainly did not come up to the Senate and House Intelligence committees and ask them how to do it legally!

It is reported that President Bush has been especially impressed with Hayden's unrelenting public defense of the surveillance program, which began under his direction. Under the program, the NSA monitors telephone calls and e-mail between the United States and overseas when one participant is suspected of links to terrorists. In addition, it has been alleged that it monitors calls and e-mails solely within the United States. The Administration continues to assert that it does not need court approval because of the president's inherent war powers. No room for the Fourth Amendment there.

In various public appearances, after all, Hayden has argued that the program was necessary for more "agility" in combating a nefarious enemy and that obtaining warrants would be impractical, even though the law permits intelligence tapping for 72 hours before getting court approval.

Will Senators on the Intelligence and Judiciary committees--not to mention the larger body of 100--flinch over performing their clear duty to uphold the Constitution of the United States against not only foreign, but domestic enemies as well?

Gen. Hayden is the wrong choice, at the wrong time, for the wrong job.