The 4th Amendment is in Jeopardy!!

There are two articles below; both related the issue of the 4th Amendment.

The first is the denial of Gen Hayden that the 4th Amendment is based on a standard of probable cause.

The second is an article showing that this administration wants to eliminate the “probable cause” standard from the 4th Amendment.


1. Gen. Hayden: "4th Amendment and wrong"



Keith Olbermann posted this video clip of Gen. Hayden botching the fourth amendment.

Knight-Ridder's Jonathan Landay questioned Gen. Michael Hayden at the National Press Club in January:

Video -WMP Video -QT

Landay: "...the Fourth Amendment of the United States Constitution specifies that you must have probable cause to violate an American's right against unreasonable searches and seizures..."

Gen. Hayden: "No, actually - the Fourth Amendment actually protects all of us against unreasonable search and seizure."

Landay: "But the --"

Gen. Hayden: "That's what it says."

Landay: "The legal measure is probable cause, it says."

Gen. Hayden: "The Amendment says: unreasonable search and seizure."

Landay: "But does it not say 'probable cause'?"

Gen. Hayden [exasperated, scowling]: "No! The Amendment says unreasonable search and seizure."

Landay: "The legal standard is probable cause, General -- "

Gen. Hayden [indignant]: "Just to be very clear ... mmkay... 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. Alright? And it is a reasonableness standard in the Fourth Amendment. The constitutional standard is 'reasonable'" ( h/t Dale)

which Keith says :

OLBERMANN: To quote the Fourth Amendment to the Constitution of the United States in its entirety, the one the general and the NSA folks are so familiar with and know is about reasonableness and not about probable cause, quote, "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 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."

Well, maybe they have a different Constitution over there at the NSA.



2. The Administration's new FISA defense is factually false January 24, 2006 Glenn Greenwald

In light of Gen. Hayden's new claim yesterday that the reason the Bush Administration decided to eavesdrop outside of FISA is because the "probable cause" standard for obtaining a FISA warrant was too onerous (and prevented them from obtaining warrants they needed to eavesdrop), there is a fact which I have not seen discussed anywhere but which now appears extremely significant, at least to me.

In June, 2002, Republican Sen. Michael DeWine of Ohio introduced legislation (S. 2659 ) which would have eliminated the exact barrier to FISA which Gen. Hayden yesterday said is what necessitated the Administration bypassing FISA. Specifically, DeWine's legislation proposed:

to amend the Foreign Intelligence Surveillance Act of 1978 to modify the standard of proof for issuance of orders regarding non-United States persons from probable cause to reasonable suspicion. . . .

In other words, DeWine's bill, had it become law, would have eliminated the "probable cause" barrier (at least for non-U.S. persons) which the Administration is now pointing to as the reason why it had to circumvent FISA.

DeWine's FISA amendment was much, much less draconian than what the Administration was already secretly doing (i.e., lowering the evidentiary standard but (i) eliminating judicial oversight, and (ii) applying these changes not just to non-U.S. persons but also to U.S. persons). Thus, Congress refused to approve -- and the DoJ even refused to endorse -- a program much less extreme and draconian than the Administration's secret FISA bypass program.

“If you aren't completely appalled then you haven't been paying attention ”