NSA on 4th Amend: Probable Lapse of Memory

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Hayden 4th amendmentThis video of Gen. Hayden (a high-ranking military dude who vowed to uphold the Constitution and Bill of Rights, speaking for the NSA) botching the fourth amendment is crazy delicious orwellian. From the Keith Olbermann Countdown transcript:

UNIDENTIFIED MALE: My understanding is that the Fourth Amendment to 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. MICHAEL HAYDEN: Well, actually, the Fourth Amendment actually protects all of us against unreasonable search and seizure. That’s what it says.

UNIDENTIFIED MALE: But the measure is probable cause, I believe.

HAYDEN: The amendment says unreasonable search and seizure.

UNIDENTIFIED MALE: But does it not say probable…


UNIDENTIFIED MALE: … the court standard…

HAYDEN: The amendment says…

UNIDENTIFIED MALE: … the legal standard…

HAYDEN: … unreasonable search and seizure.

UNIDENTIFIED MALE: … the legal standard is probable cause.

HAYDEN: Just o 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.


OLBERMANN: To quote the Fourth Amendment to the Constitution of the United States in its entirety, the one the general and the NSA folks are so familiar with and know is about reasonableness and not about probable cause, quote, “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 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.”

Well, maybe they have a different Constitution over there at the NSA.

And conservatives are kicking on the Georgetown demostrators for getting a Ben Franklin quote a little wrong?

I mean, if we’re talking context, we might as well call a spade a spade.

Stephen VanDyke

I've published HoT along with about 300+ friends since 2002. We're all Americans who are snarky and love our country. I'm a libertarian that registered Republican because I like to win elections. That's pretty much it.

  1. Not that I have any sympathy for the NSA, but actually, the way the Amendment syntax is structured, probable cause applies to issuing warrants, not searches. Searches are subject to a reasonableness test. That shouldn’t be construed to mean that I think the NSA is right in this case, but they may well be within a strict, contextual understanding of the 4th amendment. It doesn’t actually require a warrant for a search, nor probable cause.

  2. Eric, IANAL, but to play devil’s advocate, I’d say the reasoning here might be that the NSA can perform an electronic search on communications without a warrant, but they would need probable cause (the person you are talking to is a known terrorist or something similar).

    Again, not a lawyer, but that’s my take on needing probable cause in lieu of a warrant.

  3. Not that I have any sympathy for the NSA, but actually, the way the Amendment syntax is structured, probable cause applies to issuing warrants, not searches.

    You do realize that probable cause still applies to searches, don’t you?

    You said “probable cause applies to issuing warrants” but what you are obviously leaving out is that searches require a warrant.

    Therefore, searches necessarily require probable cause.

  4. And I understand where you are going with your “reasonableness test”, so you don’t think I’m ignoring that. However there’s been very little said on what the NSA’s metric is for reasonableness other than lip service about suspicion.

    Frankly that’s not very comforting to hear when that can potentially stretched to all international communications.

    Again, I don’t know the specifics, but I would hope these guys would at least be able to rattle off the 4th amendment from heart if they’re going to be dancing around it so much.

  5. I don’t think the 4th amendment says that you have to have a warrant to conduct a search. Nor does the Supreme Court. If someone is caught committing a crime they can be searched without a warrant. Probable cause really only applies to warrants. Whether the search is unreasonable, or not, is the determination used for searches. Please bear in mind that this is not a defense of the NSA!!! This is just discussing what the 4th Amendment actually says.

  6. Uh, probable cause is for searches without warrants (e.g. the cop walks up to your car and smells weed).

    The NSA wiretaps kerfuffle is about searches without warrants.

    Ergo, the NSA needed probable cause to make those searches.

  7. Stephen, I’m not saying I agree with it, but the Supreme Court has upheld warrantless searches without “probable cause”. For example, your trashcan on the curb, even though there’s not enough evidence to go to a judge and get a warrant. Another excellent example is, of course, TSA searches in airports and the searches to enter courthouses and other government facilities. If you parse the grammar of the sentence, there is no requirement for a warrant to conduct a search, and probable cause is only required for a warrant. I can’t very well demand a contextual, gramatically correct understanding of the 2nd Amendment and not do the same for the 4th. The truth is, the 4th is flawed because of that.

  8. Eric, Bush’s SCOTUS picks make more sense now, don’t they? Judges that will be favorable to expanded executive powers of search and seizure will certainly help the White House and NSA when this and other Bill of Rights legality issues finally make their way to the courts.

    Not that I agree with it, but it’s a shrewd move.

  9. If you parse the grammar of the sentence, there is no requirement for a warrant to conduct a search

    I agree. You know, just like there is no seperation of church and state since the Constitution doesn’t explicitly say those exact words.

    I’m sorry Eric, but you’re analysis is wrong and rather extreme to say the least.

    P.S. Your TSA analogy is bogus. Being searched before getting on a plane is not nearly the same as the NSA roving warrantless wiretaps.

  10. FYI, the unidentified questioner at the press conference was Jonathan Landay with Knight Ridder.

  11. P.S. Your TSA analogy is bogus. Being searched before getting on a plane is not nearly the same as the NSA roving warrantless wiretaps.

    yeah, the TSA searches violate TWO amendments

  12. You can read the official transcript. In fact, I suggest you do.

    There’s a reason I’m reserving judgment (for now) on whether this program is actually legal. At the present time, not nearly enough information is available to determine whether it’s legal.

    So at this point it’s a matter of whether you trust your government or not. Specifically whether you trust Gen. Michael Hayden.

    Knowing what I know, which is only somewhat more than the general public, I can say that I believe he presented the issue as clearly and accurately as he feels he can under the circumstances. He’s not really in a position to answer the question of whether it’s legal or not.

    And then there’s the whole other issue of many people (including most commenters here) completely misunderstanding the nature and scope of this particular program, and of what NSA does generally.

    That might take a little more time to resolve…

  13. With reference to the probable cause discussion, the following quote comes from Dr. Tom O’Connor, Associate Professor of Justice Studies at North Carolina Wesleyan College:

    “The probable cause requirement is, in many ways, more important than the reasonableness clause. Not all search and seizures require warrants (e.g., automobile searches, arrest in a public place), but the Supreme Court has interpreted warrantless searches and seizures as unreasonable unless preceded by probable cause. This means that as a general rule, most searches and seizures require probable cause.”

    If a search warrant requires probable cause, but a warrantless search only has to meet a standard of “reasonableness,” why bother getting warrant? That kind of interpretation let’s them get away with anything. For example, Hayden also said, “The constitutional standard is ‘reasonable.’ … I am convinced that we are lawful because what it is we’re doing is reasonable.”

    No need for checks & balances here.

  14. The “conservative” attempted interpretation of the Franklin quote seems about as bad as (well worse than) the ole’ Clinton definition of “what is is” bullshit wordplay. I mean I sure am glad Michelle malkin is in charge of defining what liberties are “essential” and what constitutes way more than a “little” security, as if it makes any difference at all.

  15. On that Graham, isn’t it nice to know that people like Malkin don’t consider the 4th Amendment to our Bill of Rights as an “essential liberty”?

    I mean if an amendment to the bill of rights is not an essential liberty then what is?

  16. This fellow despite his uniform which he should not be wearing because he is head of a civilian agency is a civil officer of the United States, and should be impeached.

  17. Michael Hayden is a general in the Air Force so he has the right to wear the uniform.

    The position of Principal Deputy Director of National Intelligence is an appointment by the President. It is like a judge being appointed to the supreme court. The President picks a person then the senate must approve. As far as I know, you can not impeach a supreme court judge so there is probably no way to impeach the Principal Deputy Director of National Intelligence.

    What is the difference between the TSA searches and the wiretappings? Both searches invade my person. A search into my person, my belongings and my speech should have a probably cause because in the courts I am innocent until proven guilty. This assumes the crime has already happened. The government is assuming you are guilty before a crime has occured. Everyone is a terrorist until searches prove otherwise. This is why prevention can be harmful to freedom.

  18. Actually, bac, Supreme Court judges can be impeached. Says so in the Constitution.

    I’m not comparing TSA searches to NSA eavesdropping, but I am saying that a TSA search, without a warrant, can happen because of the way the 4th Amendment is written. Pulling you over for a broken tail light and then searching your car because the cop thinks you are “acting suspicious” can happen as well, and be upheld by the law. Searching your car with a drug dog during a traffic stop was upheld by the Supremes as well. The Supreme Court has clearly said that many warrantless searches are fine as long as they are “reasonable”.

  19. “Let me put a fine point on this,” Hayden testified. “If, as we are speaking here this afternoon, Osama bin Laden is walking across the bridge from Niagara Falls, Ontario, to Niagra Falls, New York, as he gets to the New York side, he is an American person. And my agency must respect his rights against unreasonable search and seizure.”

    Rep. Heather Wilson (R-N.M.) pressed Hayden on this point. “Does NSA spy on the lawful activities of Americans?” she asked.

    “No. The answer is we do not,” Hayden said.

    The above quote is from the Congressional Record, page S9350[1], dated September 13, 2001. It originally appeared in a Washington Post Magazine article titled TEST OF STRENGTH, July 29, 2001, by Vernon Loeb. (This is cut from a post at my blog[2].)

    1. http://frwebgate.access.gpo.gov/cgi-bin/getpage.cgi?position=all&page=s9350&dbname=2001_record
    2. http://donsobservs.blogspot.com/2006/01/food-for-thought.html

  20. A number of people — including liberventionist Tim Starr — argue that the “reasonable” criterion for searches and the “probable cause” criterion for warrants are completely unrelated. A look at other amendments sustains the idea that they might be.

    – The first amendment covers several different issues (speech, press, religion, assembly).

    – RKBA advocates have argued that the militia clause in the 2nd Amendment does not restrict or otherwise impact the proscription against arms restrictions.

    -The fifth amendment includes indictments and double jeopardy, and anti-self-incrimination, and takings. Does that mean that they can only take your farm if you’ve been indicted, once, and not been forced to testify against yourself?

    On the other hand, the last time I looked, the Constitution included no enumerated wiretap power … at all.

    Tom Knapp

  21. There are, in modern Fourth Amendment law, some warrantless searches that do not require probable cause, only reasonableness. The most common is known as a Terry stop, where an officer can pat down a person for weapons during a stop. This narrow exception recognizes the exigent need for officer safety, but the officer can’t conduct a full search.

    In any event, the NSA argument is bullshit. Mere reasonableness is an exception to the rule, and a limited one at that. The “War on Terror” is not a sufficient exigent circumstance to justify eviscerating the Constitution, especially when there’s not even a scintilla of oversight for the program. Maybe I should modify that. The NSA Inspector General is overseeing the actions of “career professionals within the NSA.”

    Don’t you feel safer?

  22. What is the difference between the TSA searches and the wiretappings?

    Well the obvious one. In one you are making your own personal decision to get on a commercial plane. And the other you are merely talking on your private phone line.

  23. Some searches, legally, do not require warrants. However, there are certain requirements. Such as in the “in plain sight” rule. Or the officer must have reason to believe that he is acting of necessity (if he hears someone scream from a house, for example). Those are subject to a reasonableness clause.

    For all other searches, they require (supposedly) warrants, which is subject to a probable cause requirement. One would think that wiretaps would necessitate a warrant.

  24. “Well the obvious one. In one you are making your own personal decision to get on a commercial plane. And the other you are merely talking on your private phone line.”

    Phone lines aren’t private, they are controlled by commercial businesses. Unless you have the money to string your own wire. Most people assume their phone conversations are private because the phone companies respect the right of privacy for people. Otherwise, no one would use phones. Privacy needs trust to work. We trust the postal service to not open our mail. We trust the phone companies not to listen to our conversations. We trust airlines in not revealing the locations we are traveling to.

    The government is playing a dangerous game with the people by entering what the people call their right to privacy.

  25. And conservatives are kicking on the Georgetown demostrators for getting a Ben Franklin quote a little wrong?

    When the “conservative” response is to criticize a paraphrase of a well-known quote without addressing any of the substance of the matter, that speaks for itself.

  26. Eric, the Supreme Court hands down many decisions in error. Probably none more so than on the issue of the Fourth Amendment. The Federal Government was never intended to have general police powers and therefore was expected to get warrants on all searches. The grammar of the fourth amendment seems to make this clear. It was also Thomas Cooley’s understanding in his treatise “The General Principles of Constitutional Law” pages 228-232.

  27. Dale, look at what Knapp points out. Better yet, consider the issue from a strictly contextual point of view. On Constitutional interpretation, I will argue that we can’t have our cake, and eat it too. Many of us will argue that the constitution doesn’t allow the federal government to limit owning weapons in any way due to a strictly textual review of the 2nd Amendment. You can’t make that argument and then turn around and argue for NOT using a strictly textual understanding of the 4th. Well, you can but then you aren’t very consistent. Generally the Supreme Court has been fairly consistent in agreeing that reasonable searches don’t require a warrant. the disagreement, then, is what is reasonable and unreasonable.

  28. James Carafano of the Heritage Foundation argues that the FISA court needs to issue warrants only on the successful matches of the automated programs.

    I would argue that every NSA search, must first get FISA Court approval by submitting:
    1) a list of the communication nodes to be monitored,
    2) an adequately detailed summary of the American citizens and organizations that would be affected, 3) the search terms to be used,
    4) the names of all individuals who will be involved in implementing the search and gathering results,
    5) suitable documentation that the search was conducted as orderd (search logs)

    Thus the FISA court would have the means to limit or reject the NSA’s use of automated searches on a case-by-case basis, while ensuring that records of every search will be reviewed (and kept) by the court to protect against abuse.

  29. It’s so much worse than most of you think. If you’re willing to risk having your eyes opened, download Constitutional Chaos and have a listen. Judge Andrew Napolitano provides an excellent history lesson on the Fourth Amendment, and then shows how the federal government has been chipping away its protections since the Carter Administration. But nothing compares to what Bush and the GOP-led Congress have done to eviscerate this amendment. If listening to this doesn’t make your blood boil, then you’re never going to get it.

  30. General Hayden, I salute you for being willing to put up with the crap thrown at you every day just because are a patriot. Thank you.

  31. Here is what I found on the subject of ‘reasonable searches’.

    In short:
    I think that this would tend to support the president’s position on the NSA for two reasons:
    1) it would be reasonable to expect the commander in chief to eavesdrop on enemy communications during a time of war.
    2) is this quote, “Exceptions to the warrant requirement have multiplied, tending to confine application of the requirement to cases that are exclusively ”criminal” in nature.” Obviously waging war is not a criminal matter.

    It may not fit well with liberty but then wars generally do not. If we are going to fight a war, and this war needs to be fought, and won, then we shouldn’t fool around.

  32. Perhaps the supporters of the program claiming that probable cause doesn’t apply to searches should actually read 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.

  33. If my reading of the 4th Amendment is correct, it would appear that We, the People, are secure against all unreasonable searches and seizures, that the government simply cannot violate this Right unless it first issues a Warrant which can only be issued upon probable cause which has to be supported by an Oath or affirmation that indeed there is probable cause to issue the Warrant in order to search or seize any person, property, documents (information) or effects.
    So, the ground for unreasonable searches and seizures is simple, if it does not meet the test of probable cause, which determining factor to secure a Warrant under Oath, then it is indeed unreasonable. It would appear that any searches, either under FISA or the NSA are, in the strictest sense, illegal and extra-Constitutional.

  34. “Who are you going to salute next for being a patriot, Vietnam Vet?”
    Veterans are civilians, Not military. Therefore they don’t salute military. Your snide comment shows that you have never fought for your freedom. Nor does it address the issue being discussed. Maybe your freedom is of no worth to you because it was handed to you on a bloody platter soaked with veterans blood and not yours. Have some respect for those who fought and died for your “right” to speak your mind. Your crusade doesn’t justify disrespect Just as you say the ends don’t justify the means. If it wern’t for our vets there would be no constitution, Web, or any discussion about this so unless you are willing to enlist and do your duty don’t bash our vets!