[IP] more on Hayden's Mistaken Understanding of the Fourth
Begin forwarded message:
From: Gene Spafford <spaf@xxxxxxxxxxxxxxxxx>
Date: May 6, 2006 3:10:29 PM EDT
To: dave@xxxxxxxxxx
Cc: ip@xxxxxxxxxxxxxx, a@xxxxxxxxxxx
Subject: Re: [IP] Hayden's Mistaken Understanding of the Fourth
Re: Anthony Citrano's blog post about Gen. Hayden
I think it entirely possible that Hayden's response is being
misinterpreted. As I read his comments to Jonathan Landay, I see him
as saying that the 4th protects against unreasonable searches -- that
probable cause only comes into play if the search is unreasonable.
There is no need to show probable cause if the search is reasonable.
The question then comes down to one of "reasonable." I believe that
individuals in the government are interpreting "reasonable" in a
manner that leads them to believe that what is being done does not
require a showing of probable cause. At the same time, there are
many people outside of that group who are concerned about how
"reasonable" is being defined without oversight.
To the best of my knowledge (and please correct me if I am wrong)
there has been no public disclosure about what is actually being
intercepted and/or monitored by the NSA, and therefore we really
don't know if it is reasonable according to our own definitions.
There are many people who mistrust those in authority, automatically,
and the intelligence agencies in particular, and thus the presumption
is that the monitoring is not reasonable. There is also a number of
people who do not trust the current administration, especially given
their record as regards candor on important issues, and they also
presume that the monitoring is not reasonable. That has led to a lot
of debate without showing much progress, because we don't really know
the limits, and so many people are starting from different base
assumptions about what is being done..
As for me, I worry that the monitoring MAY BE unreasonable, but I am
not going to label it as such without more evidence, nor am I going
to malign people such as Michael Hayden who appear to honestly
believe -- based on legal advice and long service -- that what they
are doing is legal.
My biggest concern seems to be more in line with one of Mr. Citrano's
implications -- that so many of our elected representatives in
Congress are unwilling to show the gumption to ignore issues of
politics, and instead honor their oath of office to uphold the
Constitution -- and thus hold a real, in-depth hearing on issues such
as IF the program involved is in violation of the law.
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