[IP] more on Hayden's Mistaken Understanding of the Fourth
Begin forwarded message:
From: "Bruce D. Larkin" <bruce.larkin@xxxxxxxxxxxxxx>
Date: May 6, 2006 7:34:10 PM EDT
To: dave@xxxxxxxxxx
Subject: more on Hayden's Mistaken Understanding of the Fourth
Dave,
Further comment, if not overload, focused on General Hayden's January
23rd remarks and the exchange with Jonathan Landay. This is at my blog
http://www.learnworld.com/blog/blog.html
Bruce
Saturday, May 06, 2006
? MICHAEL V. HAYDEN: ŒREASONABLE¹ SURVEILLANCE?
General Michael V. Hayden has been identified by unnamed newspaper
sources as a frontrunner to be named Director of Central Intelligence
in place of Porter Goss, whose resignation was announced today.
In January 2006 General Hayden advanced a remarkable theory to
vitiate the Fourth Amendment of the Constitution and justify
unwarranted interception and use of communications to and from ³U.S.
persons,² principally US citizens. In a speech at the National Press
Club [1] General Hayden said, in part:
³Inherent foreign intelligence value is one of the metrics we must
use. Let me repeat that: Inherent foreign intelligence value is one
of the metrics we must use to ensure that we conform to the Fourth
Amendment¹s reasonable standard when it comes to protecting the
privacy of these kinds of people. ... [T]he standard of what was
relevant and valuable, and therefore, what was reasonable, would
understandably change, I think, as smoke billowed from two American
cities and a Pennsylvania farm field. And we acted accordingly.²
The Fourth Amendment states: ³The 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.²
After General Hayden had delivered his remarks the floor was opened
for questions. The following exchange took place between Hayden and
Jonathan Landay of Knight-Ridder:
QUESTION: Jonathan Landay with Knight Ridder. I¹d like to stay on the
same issue, and that had to do with the standard by which you use to
target your wiretaps. I¹m 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
American¹s 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: That¹s 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, ³We reasonably believe.² And a FISA
court, my understanding is, would not give you a warrant if you went
before them and say ³we reasonably believe²; you have to go to the
FISA court, or the attorney general has to go to the FISA court and
say, ³we have probable cause.² And so what many people believe ‹ and
I¹d like you to respond to this ‹ is that what you¹ve actually done
is crafted a detour around the FISA court by creating a new standard
of ³reasonably believe² in place in 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 didn¹t 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
there¹s any amendment to the Constitution that employees of the
National Security Agency are familiar with, it¹s the Fourth. And it
is a reasonableness standard in the Fourth Amendment. And so what
you¹ve raised to me ‹and I¹m not a lawyer, and don¹t want to become
one ‹ what you¹ve raised to me is, in terms of quoting the Fourth
Amendment, is an issue of the Constitution. The constitutional
standard is ³reasonable.² And we believe ‹ I am convinced that we are
lawful because what it is we¹re doing is reasonable.
From General Hayden¹s reading of the Fourth Amendment it follows
that the State must seek a search warrant only when it proposes an
unreasonablesearch. Reductio ad absurdum.
Or we could ask how Œreasonableness¹ is established, and how the
issue is resolved if the State¹s claim to Œreasonableness¹ of a
specific search‹here a program of interceptions‹is contested. General
Hayden¹s position is that he, as Director of NSA, determined
Œreasonableness¹; that the program was and ought to have remained
secret; and that therefore only those who were properly privy to the
secret could have contested it, and then only within the limited
circle of those entitled to the secret. Hence Congressional oversight
or appeal to the Courts is precluded, unless someone who has learned
about the secret intercept program goes public.
General Hayden¹s position also neglects the fact that there is law‹an
Act of Congress‹which expressly prohibits what he chose to do as
Director of the NSA and defended in January as Principal Deputy
Director of National Intelligence.
Title 50 § 1802(a)(1) authorizes warrantless electronic surveillance
to acquire foreign intelligence information, subject to some
conditions, provided ³there is no substantial likelihood that the
surveillance will acquire the contents of the communication to which
a United States person is a party;² [This distinguishes ³content²
from facts that might be gathered about a transaction.] Note that one
US person is enough. Title 18 § 2511 (2)(f) states in part that ³the
Foreign Intelligence Surveillance Act of 1978 shall be the exclusive
means by which electronic surveillance ... and the interception of
domestic wire, oral, and electronic communications may be conducted.²
One term, setting scope, is domestic. For domestic surveillance FISA
provides the ³exclusive means². If domestic surveillance does not
follow the terms of the FISA Act it is illegal. Of course, as
everyone including the chairman and ranking member of the Senate
Judiciary Committee has said, we don¹t know exactly what NSA did,
because they won¹t say. Secret.
We can, however, work General Hayden¹s language a bit further. Not
every person in the United States is a ³United States person²,
despite General Hayden¹s attempt to convince his audience that any
terrorist who stepped across the border would become protected from
surveillance. In General Hayden¹s words ³And by the way, ŒU.S.
person¹ routinely includes anyone in the United States, citizen or
not.² But 50 USC §1801(i) defines a ³United States person² as ³a
citizen of the United States, an alien lawfully admitted for
permanent residence (as defined in section 1101(a)(20) of Title 8)²
and further defined associations and corporations. [3] ³So, for
example,² Hayden continues, ³because they were in the United
States‹and we did not know anything more‹Mohamed Atta and his fellow
18 hijackers would have been presumed to have been protected person,
U.S. persons, by NSA prior to 9/11.² But not thereafter? What General
Hayden does not put on the table is that the law does not ban
intercepts but distinguishes those intercepts which may be made
without warrant, with Executive approval from those which may only be
undertaken pursuant to court-issued warrant, subject to the
conditions stipulated in law. The plain meaning of General Hayden¹s
subsequent lines is that the communications of US persons are
intercepted and judged, despite the law. ³If the U.S. person
information isn¹t relevant, the data is suppressed.²
Whether General Hayden is actually nominated to succeed Porter Goss
as CIA Director or not, the claim that the Executive can undertake
warrantless interception whenever it says that doing so is
Œreasonable¹ is pernicious and should be confronted head on. Hayden¹s
remaining as Principal Deputy Director of National Intelligence after
his January 23rd remarks is further evidence of problems which few
Congressional Republicans, and no one in the White House, seems
inclined or ready to address.
[Note 1]: Remarks by General Michael V. Hayden, Principal Deputy
Director of National Intelligence and Former Director of the National
Security Agency, Address to the National Press Club, ³What American
Intelligence & Especially the NSA Have Been Doing to Defend the
Nation,² Natonal Press Club, Washington, D. C., January 23 2006.
http://www.fas.org/irp/news/2006/01/hayden012306.pdf
[Note 2:] http://www4.law.cornell.edu/uscode/html/uscode50/
usc_sec_50_00001809----000-.html
[Note 3:] And the Congressional Research Service called attention to
this definition in Elizabeth B. Basan, ³The Foreign Intelligence
Surveillance Act: An Overview of the Statutory Framework and Recent
Judicial Decisions,² 22 September 2004, CRS Report RL30465, p. 11 note.
--
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Bruce D. Larkin
Convenor and Director of Studies
Global Collaborative on Denuclearization Design http://www.gcdd.net/
Sometime Professor of Politics, University of California at Santa Cruz
Email: "Bruce D. Larkin [+]" <bruce.larkin@xxxxxxxxxxxxxx>
The [+] flags incoming mail as wanted, avoiding loss amid SPAM.
Web: http://www.learnworld.com/ and http://www.gcdd.net/
Mobile: +1-413-695-0264
Landlines: +1-413-634-8842. +353-23-40309. +1-831-429-8443.
Course Syllabi: http://www.learnworld.com/COURSES/
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