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It was written in invisible ink

Michael Hayden, who will likely be the next head of the CIA – which ought to maybe know something about the fourth amendment, once had this conversation:

QUESTION: Jonathan Landay with Knight Ridder. I’d like to stay on the same issue, and that had 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. Do you use—

GEN. HAYDEN: No, actually—the Fourth Amendment actually protects all of us against unreasonable search and seizure. That’s 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 unreasonable search and seizure…

GEN. HAYDEN: … 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.

Be afraid.

Update: BTW, the fourth reads:

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.

I suppose that, technically, he may be correct that the Fourth Amendment actually protects all of us against unreasonable search and seizure. But it seems to me that he’s not even acknowledging that probable cause with respect to warrants is in there.

Update 2: Xrlqy Wrlqy says I am wrong. I’m inclined to concur. However, I think we use warrants far less often than we should, which is what probable cause refers to. That said, eliminating warrants where we usually would use them (which we’ve done in some cases), rather makes the entire probable cause section rather, err, unimportant. I think that’s a bad idea. Why include the warrant language if it’s not necessary? What am I missing here?

11 Responses to “It was written in invisible ink”

  1. Joe P. Says:

    Yeesh. And that conversation was pretty widely read.

    Any Senate hearings on his appointment (if they occur) could
    be most interesting, as his role in warrantless wiretaps (if
    they can talk about them) may actually stir some wakefulness.

    If he is blindly approved, then I did not approve these comments.

  2. brittney Says:

    Holy crap. This is not good.

  3. Xrlq Says:

    I suppose that, technically, he may be correct that the Fourth Amendment actually protects all of us against unreasonable search and seizure. But it seems to me that he’s not even acknowledging that probable cause with respect to warrants is in there.

    That distinction is anything but technical. Landay was asking him about searches and seizures; they weren’t talking about how to obtain a warrant.

  4. drstrangegun Says:

    Just sounds to me like he was correcting the use of “unlawful”. But I’m a logician by trade, it contaminates the brain…

  5. drstrangegun Says:

    “That distinction is anything but technical. Landay was asking him about searches and seizures; they weren’t talking about how to obtain a warrant.”

    I would much rather have that defined within reason than within law. Law can easily deride reason.

  6. Xrlq Says:

    That said, eliminating warrants where we usually would use them (which we’ve done in some cases), rather makes the entire probable cause section rather, err, unimportant. I think that’s a bad idea. Why include the warrant language if it’s not necessary? What am I missing here?

    That warrantless searches and seizures are only allowed under certain circumstances, where they can be justified. Otherwise, they’ll be deemed unreasonable and therefore, unconstitutional.

  7. Joe P. Says:

    I think it’s plain (though attorneys may argue semantics) the latter portion of the 4th is
    the key element here, where it states no searches or seizures may occur
    and “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.”

    Since the law requires the warrants specify the description of places, persons
    and things.

  8. Wickedpinto Says:

    Well, if you wanna argue that. then you also have to take into the account, and you have to define what “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. ”

    You, “I suppose that, technically, he may be correct that the Fourth Amendment actually protects all of us against unreasonable search and seizure. But it seems to me that he’s not even acknowledging that probable cause with respect to warrants is in there.”

    First, he wasn’t saying that there wasn’t a need for probable cause or warrant as it applies to the fourth ammendment, he was saying that the NSA wiretaps do not fall under the fourth ammendment.

    The second article of the constitution grants the president extreme powers in and out of a declaration of war, and even if the 4th did apply to “papers and effects” the fourth clearly insinuates Personal papers and effects. Wire communcations it might be argued, and has been, are not personal, because they are fundamentaly disseminated to others.

    The information contained within the wiretaps for the purpose of prosecution, or violation of any of the material property described in the fourth is never once violated by wire interceptions.

    Here is how I see it. Any property belonging to you, and to those within your household, then it is private, but as soon as you share it, it is no longer private it is, in fact, published/broadcast to a group. Hayden wasn’t saying that the fourth ammendment doesn’t have a requirement for probable cause and warrants, but he was saying that in this syntax, it isn’t even context, in the syntax of the NSA program, the 4th does not apply because there is no violation of any of the rights of others in accordance with the 9th, and no violation of the fourth since the information is fundamentaly “published” even if it is only published to one person other than yourself.

    I’m not a lawyer, but these arguments are easy to see if you actually read the constitution as a whole, rather than as a bunch of independant bodies that are supreme within a category.

  9. damnum absque injuria » Memo to Cavanaugh: Ignorance and Sarcasm Don’t Mix Says:

    […] UPDATE: Et tu, Uncly-Wuncly. […]

  10. TallDave Says:

    Why include the warrant language if it’s not necessary? What am I missing here?

    It’s very very important for situations that require warrants. Gathering intel pursuant to the use of force against a foreign threat does not.

  11. Buddy Says:

    http://www.law.cornell.edu/supct/html/94-590.ZO.html

    “Warrants cannot be issued, of course, without the showing of probable cause required by the Warrant Clause. But a warrant is not required to establish the reasonableness of all government searches; and when a warrant is not required (and the Warrant Clause therefore not applicable), probable cause is not invariably required either. A search unsupported by probable cause can be constitutional, we have said, “when special needs, beyond the normal need for law enforcement, make the warrant and probable cause requirement impracticable.” Griffin v. Wisconsin, 483 U.S. 868, 873 (1987)”

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