more on Hayden's Mistaken Understanding of the Fourth

[David Farber <dave () farber net>]

Begin forwarded message:

From: "Bruce D. Larkin" <bruce.larkin () learnworld com>
Date: May 6, 2006 7:34:10 PM EDT
To: dave () farber net
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 () learnworld com>
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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