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Trevor Stone's Journal
Those who can, do. The rest hyperlink.
Speaking of The Constitution... 
24th-Jan-2006 11:20 pm
carmen sandiego
This segment on Democracy Now was the first thing I experienced this morning. It begins with a press event by the former head of the National Security Agency defending George W. Bush's practice of wiretapping American citizens without a warrant. It then follows with discussion between host Amy Goodman and Jim Bamford, an author who covers the NSA. Of particular note is the following passage:

JONATHAN LANDAY: Jonathan Landay with Knight Ridder. I'd like to stay on the same issue. And that has 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.

GEN. MICHAEL HAYDEN: Actually, the Fourth Amendment actually protects all of us against unreasonable search and seizure. That's what it says.

JONATHAN LANDAY: But the measure is probable cause, I believe.

GEN. MICHAEL HAYDEN: The amendment says unreasonable search and seizure.

JONATHAN LANDAY: But does it not say probable --

GEN. MICHAEL HAYDEN: No.

JONATHAN LANDAY: The court standard, the legal standard --

GEN. MICHAEL HAYDEN: The amendment says unreasonable search and seizure.

JONATHAN LANDAY: 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 would like you to respond to this, is that what you have 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 a probable cause. Can you respond to that, please?

GEN. MICHAEL HAYDEN: Sure. I didn't craft the authorization. I am responding to a lawful order, alright? The Attorney General has averred to the lawfulness of the order. Just to be very clear, okay -- and believe me, if there's any amendment to the Constitution that employees at the National Security Agency is familiar with, it's the fourth, alright? And it is a reasonableness standard in the Fourth Amendment. So, what you've raised to me -- and I'm not a lawyer and don't want to become one -- but 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're lawful because what it is we're doing is reasonable.

AMY GOODMAN: The Deputy Director of National Intelligence, former head of the National Security Agency, Michael Hayden, being questioned yesterday at the National Press Club. That last reporter, after Jim Bamford asked his question, was Jonathan Landay of Knight Ridder, editor and publisher pointing out, well, this is the Fourth 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.

Hayden's nitpicking maneuver seems to be noting that the grounds for a warrant must be probable cause, but the grounds for warrantless search and seizure is merely reasonableness. But if the government can search and seize based purely on reasonableness, the only reason to ever get a warrant is if they have unreasonable probable cause.

An analogous argument would be to propose a law banning gun ownership for people not enrolled in a well regulated militia. Another would be to claim that since there's a "just compensation" guide in the takings clause that a person may be deprived of property without due process of law so long as he is compensated.

The Constitution: It's not just a good idea, it's the law.
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