More on Hayden on NSA program

["David Farber" <dave () farber net>]

-----Original Message-----
From: Daniel Weitzner [mailto:djweitzner () csail mit edu] 
Sent: Tuesday, January 24, 2006 9:37 AM
To: dave () farber net
Cc: Ip; Tim Finin
Subject: (for IP) Re: [IP] More on Hayden on NSA program

Hi Dave and Tim,

Applying 4th Amendment principles is generally a puzzle. This  
situation is even more complex because the Administration seems to be  
arguing that most of the statutory rules that usually apply (FISA,  
Wiretap Act) just don't. So there are really two questions:
-can the Administration program avoid FISA?
-if so, is it permissible under the 4th Amendment?

Most of the arguments from the Administration have focused on the  
first part of this question -- do the statutes apply? By going to the  
substance of the 4th Amedment, Hayden re-opens a lot of settled  
questions about wiretapping. In particular, if it's the case that the  
surveillance was conducted in order to discover patterns of activity,  
rather than get at communications of people already under sufficient  
suspicion to justify a probably cause warrant or a FISA order, then  
we have to get in the question of the 4th amendment status of pattern  
detection. Some people characterize this a fishing expedition. I  
think that there are interesting parallels with suspicionless  
searches such as roadblocks. A recent case on this subject,  
Indianapolis v. Edmonds, 531 U.S. 32 (2000) illuminates some of the  
issues Tim raises:

"The Fourth Amendment requires that searches and seizures be  
reasonable.  A search or seizure is ordinarily unreasonable in the  
absence of individualized suspicion of wrongdoing.... While such  
suspicion is not an "irreducible" component of reasonableness,  we  
have recognized only limited circumstances in which the usual rule  
does not apply."

The court in Edmonds struck down an Indianapolis policy department  
practice of erecting roadblock that randomly stop drivers to check  
for illegal drugs. Though random checks to stop immediate driving- 
related hazards such as drunk driving had previously been approved,  
the Court here rejected the illegal drug roadblock because the Fourth  
Amendment does not allow "suspicionless searches" except in "special  
circumstances." Ordinary crime control is not a special circumstance,  
but the Supreme Court went on to say:

"...the Fourth Amendment would almost certainly permit an  
appropriately tailored roadblock set up to ***thwart an imminent  
terrorist attack*** or to catch a dangerous criminal who is likely to  
flee by way of a particular route.  See 183 F. 3d, at 662-663.  The  
exigencies created by these scenarios are far removed from the  
circumstances under which authorities might simply stop cars as a  
matter of course to see if there just happens to be a felon leaving  
the jurisdiction.  While we do not limit the purposes that may  
justify a checkpoint program to any rigid set of categories, we  
decline to approve a program whose primary purpose is ultimately  
indistinguishable from the general interest in crime  
control." (emphasis added)

How does this rule on physical searches of cars (which have largely  
lost their 4th Amendment protection) apply to electronic  
surveillance? I'm sure we hear a lot about this from all sides.

Danny



On Jan 23, 2006, at 9:32 PM, David Farber wrote:

> -----Original Message-----
> From: Tim Finin [mailto:finin () cs umbc edu]
> Sent: Monday, January 23, 2006 9:13 PM
> To: dave () farber net
> Subject: More on Hayden on NSA program
>
> I was puzzled when I heard this exchange on the radio.
> General Hayden was clearly denying that "probable cause" was
> the standard for what is allowed in the fourth amendment.
> But the Constitution seems to say otherwise. It turns out that
> there's a trick involved, so pay close attention.
>
> Here's the exchange:
>
>    Q: 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 --
>
>    HAYDEN: No, actually -- the Fourth Amendment actually
>    protects all of us against unreasonable search and
>    seizure. That's what it says.
>
>    Q: But the measure is probable cause, I believe.
>
>    HAYDEN: The amendment says unreasonable search and seizure.
>
>    Q: But does it not say probable ...
>
>    HAYDEN: No. The amendment says unreasonable search and
>    seizure...  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. And it is a reasonableness standard in the Fourth
>    Amendment. And so what you've raised to me -- and I'm not a
>    lawyer, and don't want to become one -- 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 are
>    lawful because what it is we're doing is reasonable."
>
> And here 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.
>
> The trick is this -- "probable cause" is only needed to get
> a warrant for a search, so if you forgo asking for a
> warrant to be issued, you are home free.  Slam dunk. This
> Law stuff is pretty neat.
>
>
>
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