Critics [of the NSA program] -- many of whom are members of the Senate -- charge the surveillance program is a violation of law and an assault on civil liberties.Well, really, why isn't this the perfect occasion to hash it out about the program? If it is not made a central issue in the confirmation, I think I'm going to assume that the critics believe that airing the issue will hurt them.
Hayden has defended the program, insisting it is a necessary tool to thwart terrorists and that the process of obtaining warrants is too slow and cumbersome to deal with "a lethal enemy."
May 8, 2006
"His confirmation should not be about whether you're for or against the NSA program."
Said Jane Harman, the ranking Democrat on the House Intelligence Committee, of the nomination of Mike Hayden to head the CIA. But won't it be? It's the Senate that must confirm Hayden:
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The Dems are gonna screw this up. They are the '64 Phillies. They've got a Prez with sagging ratings (he's got MSNBC ratings!) and gas prices higher than Tommy Chong and they will still find a way to mess this up. Whoever said the Dems are the gift that keeps on giving was right.
Libs should re-think George Bush's religious scruples because someone obviously is in his corner. No matter how much shit Georgie Boy gets into -- he seems to come up smelling like a rose in the end. If the Repubs win the mid-terms with $3.50/gallon gas, ambivalence towards Iraq, disorganization in the ranks, and the immigration thing then divine intervention is a definite possibility. That or there's no way in Hell that anyone can imagine Pelosi with real power.
Don't know much about Hayden. I'm a tad leery of a military guy running CIA, but not dead set against it.
David: "The NSA program is vital to our protection as a country."
Well, that's what I'm going to assume the Senators are conceding if they don't make it an issue.
Are the Democrats going to play the civil-control-of-the-military theme? They can't do that if they want to push the retired generals' opposition to Rumsfeld.
I predict the Democrats will come off looking ineffectual as usual (and still not tough enough in the war on terrorism). But I'd love to be wrong.
General Hayden is imminently qualified to run CIA in a time of war.
(Chuckle) Shouldn't he be qualified now?
I eagerly anticipate Sen. Kerry's view on this!
I agree with Troy and Ann -- the democrats will try and fail miserably to make political hay. I'm not even sure there's hay to be made. I'm also leery about a General leading the CIA, but I don't think that's a great talking point if the President can get enough of the Capitol to say it doesn't matter.
Maybe I'm being dense, and maybe I just haven't had enough caffeine, but could somebody explain to me that a program run by the NSA has to do with the confirmation of a new head of the CIA? Sure, Hayden was the NSA director while the program took place, and that program is controversial, but so far as I know, the program took place at the direct instruction of the White House.
If a man comes to work for you as a structural engineer, and he's been working as a lumberjack for the last five years, would you complain about his method of cutting down trees, or would you ask questions relevant to whether or not he'd be a good structural engineer? Who heads the CIA is of far too much importance to be used as an opportunity for some Senate democrats to preen in another confirmation hearing. Personally, I think every time they complain about the NSA program, they lose another ten voters, because I think most voters have very little problem with the NSA program. The only folks who are really concerned about this program are people who were never going to vote Republican anyway, so really, who cares about their opinion. Kossacks and quasi-Kossacks. So if the Dems want to go on the talk shows and complain about this stuff, they can feel free to slip their heads into that noose. But they should concentrate in the hearings on actually asking questions that relate to the job before them.
MadisonMan said...
"I eagerly anticipate Sen. Kerry's view on this!"
I eagerly anticipate finding out if he's for it before he's against it, or against it before he's for it. We'll see which way the wind blows.
Ann wrote:
David: "The NSA program is vital to our protection as a country."
Well, that's what I'm going to assume the Senators are conceding if they don't make it an issue.
Ann, I think you're giving the Senators too much credit. They may well believe that the NSA wire-tapping program ISN'T vital to the country, or perhaps even harmful, but won't cause a stink about it if they think it's a loser of an issue.
David, your comment would make a bit more sense if it were 2004. We are undeniably in a time of talking and negotiations. The US doesn't possess a bomb that can set up a stable Iraqi government and we have yet to develop a missile that can build a lasting infrastructure.
Danny,
We are at war. Simply because we don't have a bomb that can set up an Iraqi government doesn't cancel that out.
There is a political case to be made about Goss and his replacement by Hayden, but I don't think the Dems will focus their opposition on the NSA program.
As for the Dem's critique of the NSA program, it is long on legalisms and short on common sense. The legal arguments are themselves involved, technical and inconclusive. As a political matter, the legal issues are of intense interest only to folks who already believe, for many other reasons, that Bush and everything associated with him and his policies is dead wrong.
To date the political argument at the core of the Dem's case on the NSA program has been the idea that the greatest threat to the American public is an overarching Big Brother. Committed civil libertarians undoubtedly view the world through that lens, but for the rest of us, the memories of WTC 1, the Embassy bombings, the Cole, 9/11, etc., haven't faded quite yet. Putting aside the obvious need for accurate and timely intelligence about the intentions of would-be terrorists, the NSA progam may conceivably provide a source of insight into the Iranian regime's plans and intentions. The Dems need to articulate where they stand on those issues, both in terms of the importance of the intelligence gathering efforts, and the broader issues posed by the continuing threats to American interests from those quarters. As far as I can tell, the Dem position on all of those issues is only: Bush has made a mess of things. Where and how the Dems would differ, if entrusted with national leadership, is a mystery, at least to me. In dangerous times, I don't find mysteries of that sort anything I would care to support.
A national airing of those issues would be a good thing in its own right, regardless of which party it ultimately favored. A great source of weakness in American foreign policy is the perception that we are a feckless and inconstant player on the world scene, always just one election away from abandoning the commitments and policies we are currently pursuing. A national debate -- a serious one, where national leaders including the candidates who want to run in 2008 have to take a stand and defend it -- would be a start on getting American foreign policy out of the poisonous partisanship in which it is presently stuck. It could also potentially benefit the Dems (depending on the position they eventually adopt), in that they are widely viewed as lacking in any seriousness on these issues by all but their own committed partisans. And, as recent elections have shown, they're going nowhere if the only people they can convince are their own committed partisans.
No such debate will happen, because it would first require the Dems to decide what they stand for other than "not Bush." Instead, I think we're about to get more along the lines of "Bush is incompetent" -- like Brown at FEMA, the charge will be that Goss was a political hack who had not business being in charge of the CIA. If you find the endless Katrina meme persuasive (I don't), then you'll porbably like the upcoming "debate" over Hayden. Otherwise, it's all likely to be just the usual noise from the Beltway crowd signifying very little.
The idea that Hayden will hack off CIA insiders will probably be brought up. He'll lower morale, etc.
Well good, they've already proven to be more adept at subversive politics then spying so I say lets flush a few more out into the open.
I'd rather have them blabbering to Keith Olberman or some Code Pink rally than actually working for the CIA.
I just don't think the Dem senators will be able to resist the issue. Feingold's on the Senate Intel.Comm. and he's already staked out that ground. I can also see Kerry calling in from a sailboat somewhere telling his fellow democratic senators to fillibuster.
Ann,
You're suggesting that the U.S. Senate, the world's most esteemed deliberative body, is the appropriate place to debate matters of grave national importance.
Since when?
Danny said...
"David, your comment would make a bit more sense if it were 2004. We are undeniably in a time of talking and negotiations. The US doesn't possess a bomb that can set up a stable Iraqi government and we have yet to develop a missile that can build a lasting infrastructure."
I had been under the impression that Democrats didn't like it when the administration conflated the war in Iraq with the war on terrorism, yet here is the most bizarre creature: apparently, an argument that the war in Iraq not only is part of the war on terror (or the war on islamic insurgency, whatever one wishes to call it) but that it IS the war on terror.
I think that the liberation of Iraq is part of the war against islamic insurgency, and I think it is an important part of that process, but I am not so naive as to think that the war stands or falls on our success in the battle for Iraq. Nor do I deny that this war is not just about firing enough missiles at the enemy; there are battles in this war in which you are right, talking and negotiations are going to get more done than military action. But again, we are talking about battles, not the wider conflict. Al Queda and like-minded organizations want to mount another strike in America, and sooner or later, they are probably going to succeed. And if it's on a Democratic President's watch, Rush will howl about how terrible you guys are, and if it's on a Republican President's watch, Air America will work itself into a similar frenzy. But in any event, they will try, and try, and try again; they will probably succeed. How much damage they inflict when they do so, and for how long they can be prevented from doing so, may in large part turn on programs like the NSA program. If we prosecute this war vigorously enough, we may be lucky that we only have to take one more hit on our own shores. We may even get incredibly lucky and root it out before the next attack, but that's unlikely.
I'd point out to you, by the way, something that nobody wants to be so crass as to be the first one to say, so I'll take the heat and say it. When it happens - "it" being a nuclear attack, a biochem attack, or even "just" a 9/11 style event - it isn't going to be Republican constituencies that vanish from the map. It will be Los Angeles, or San Francisco, or Chicago, or New York City, or the District of Columbia. I would have thought that Democrats, of all people, would have a critically pressing imperative - even if not because they believe in defending this country, even if only out of venal self-interest - to vigorously prosecute this war and national security, because if one slips through the net, the people who are going to pay the heaviest price are practically certain to be democratic voters.
I think you are shockingly naive if you seriously believe that we can negotiate our way out of this war. In The Lord of the Rings, a recalcitrant King of Rohan makes the argument that Democrats make now; he does not want to go to war. An exasperated Gandalf makes the argument that Republicans have been making for the last five years: it makes not a whit of difference if you WANT to go to war; war is UPON you. This was not a war of our choosing, it was thrust upon us. The question now before us is not war or no war, it is victory or defeat. You can criticize how we are prosecuting the war, and certainly I have my own beef with how this administration is running it, but in a very real sense, you really are with us or against us when it comes to this. You can be with us and criticizing the way the war is being run, as is Michael Scheuer, for example, who has written some stinging criticisms of how the war is being conducted. But if you aren't with America in fighting this war - and I don't mean the battle going on in Iraq - you really are with them.
If it is not made a central issue in the confirmation, I think I'm going to assume that the critics believe that airing the issue will hurt them.
In fairness, most of the critics are not serving in the Senate, so if it is not an issue in the confirmation, it is awfully hard to draw any conclusions about what the critics believe.
I know Mike Hayden from my military days, and he's an excellent choice to head up the CIA. I say that, even though I'm often somewhere left-of-center in my independent political views. But what actually may work against him, is how "good" he really is as an intelligence officer. He has a breadth and depth to his experience in this field that is unusual in someone being considered for this high a post. Frequently, people are placed at the top of such governmental bodies who never had to work their way up through the systems, and thus don't "really" understand how the various elements work and interact. Nor do they have enough years working in these fields, to give them a true historical perspective on what worked, what didn't work, and what things need to be tried in the future. Since Washington DC is also full of politicians and other governmental functionaries who all consider themselves as possessing "intelligence skills", they may decide that General Hayden's competence (and knowledge) is actually a threat to their own little fiefdoms. And there are numerous other factors (some appropriate and some not) why Senators may vote for and against this nomination. The verbiage that comes out in the media is not always an accurate reflection of the true reason behind the final vote.
I would hope that a decision could be reached on this vital appointment that is based on "what is good for the country". But I realize that there are radically diverging opinions of what that really means.
I think Gen Hayden an excellent choice.
However, it is becoming worrisome to me that the only part of our government that seems competent is the military. FEMA no good? Send in the military. Turn reconstruction of Iraq over from the military to the State Department--oops that didn't work well, did it?
So, in for a penny, in for a pound.
I nominate Lt. Gen Honore, the "Raging Cajun" to head the Federal reserve. No more mealy mouthed " given productivity and the tightness in regional labormarkets, the fungibility of labor and the constrictions in M12, maybe we will and maybe we won't". Instead we will have "Yes Sir. going up." and if any doubts are expressed. "You are stuck on stupid. Your job is to tell the public rates are going up. That's all. Do it now. Up. "U"-"p". Got it?"
My kind of federal reserve chairman.
Ann -
"If it is not made a central issue in the confirmation, I think I'm going to assume that the critics believe that airing the issue will hurt them."
Yes, and Jane Harman has particular reason to be leery of a hashing out, since she was on the Gang of 8 overseeing the program, and so was one of the Democrats who would have been able to raise serious Constitutional questions if she saw them or even suspected them.
So either she didn't see those questions, which harms the Democrats' case that W is destroying the Bill of Rights; or she did and didn't say anything, making her also culpable.
Buh-bye 4th Amendment, it was nice to know you.
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'"
Maybe they can put this guy through the murder boards too. (Murder boards, I suspect he already knows about water boards.)
I'm a tad leery of a military guy running CIA, but not dead set against it.
I don't know. Stansfield Turner did a pretty good job of de-fanging the agency; I'd think Gen. Hayden could do at least as well as he did, if given that mission by Congress and the President.
The real issue, IMHO, is that while the tech stuff is nice, what we really need is a strong humint/counter humint capability. The people side of intel has been neglected for two or three decades, and it is a persistent weakness. Putting a career signals intel guy in charge of the CIA (Hi Gen. Hayden! I know your troops are reading this now!) is like putting an electrical engineer in charge of a dam building project. A sharp electrical engineer might just make a go of the project, but it's not a natural choice and not where the smart money is likely to go.
Maybe they can ask Mr. 4th Amendment about our secret CIA prisons.
CIA Secret Prisons Exposed
The disappeared: Are they dead? Are they alive? Ask Congress. Ask the president.
by Nat Hentoff
May 7th, 2006 7:59 PM
About the 4th amendment: "probable cause" is required for a warrant, but not every search requires a warrant. Learn some 4th amendment law before spouting off.
Maybe, maybe, maybe, yes, because, no, none.
or it could be no, no, no, yes, because, maybe, none
Dude its always about you, your take on things and how we should be convinced that you have found the truth. You can respond with all your smart ass logic but really you're just trying to draw attention to yourself. I mean its more than stupid to keep changing your identity much less throwing out hypotheticals to Ann or "some constitutional law prof"
You're not funny, not clever, not interesting, not original, and almost always not right.
I couldn't make up someone so pathetic.
Quxxo,
Doesn't it seem disastrous for your credibility that you not only post anonymously, but that you're even managed to sink lower by posting under multiple pseudonyms? Do you think that by posting under an alternative anonymous pseudonym, we will think that there are, in fact, more people that agree with the stuff you say?
Honestly, man, what's the deal here?
Folks, Hayden would make a good DCIA. Here are the arguments used against him.
He's a military manSo were 1/3 of the DCI's. Clearly they did not cave to the SECDEF before. Clearly the first guy, Colonel Donovan did not seem beholden to GEN Marshall.
He's he'd be beholden to RumsfeldHayden is a 4 star. He was a 3 star at NSA. He got promoted to 4 star when he went to work for Negroponte. All the other possible intell jobs in DoD re 3 star. It's a dead end career (NSA, DIA, JCS J2, USAF G-2, etc). He is absolutely not qualified to hold any other DoD 4 star position. The only possible intell job left after CIA is the DNI job and that would only be available if he were loyal to the DNI and the president, not the SECDEF.
He's a SIGINT guyHe is a full spectrum intel guy who started his intel work in HUMINT (CIA agent stuff) not SIGINT. Look at his bio here.
http://www.nsa.gov/about/about00013.cfm
August 1979 - June 1980 - Student, Defense Intelligence School (Postgraduate Intelligence Curriculum), Defense Intelligence Agency, Bolling Air Force Base, Washington, DC
June 1980 - July 1982 - Chief of Intelligence, 51st Tactical Fighter Wing, Osan Air Force Base, South Korea
June 1982 - January 1983 - Student, Armed Forces Staff College, Norfolk, VA
January 1983 - July 1984 - Student, Air Attache Training, Washington, DC
July 1984 - July 1986 - Air Attache, U.S. Embassy, Sofia, People's Republic of Bulgaria
July 1986 - September 1989 - Politico-Military Affairs Officer, Strategy Division, Headquarters U.S. Air Force, The Pentagon, Washington, DC
September 1989 - July 1991 - Director for Defense Policy and Arms Control, National Security Council, Washington, DC
July 1991 - May 1993 - Chief, Secretary of the Air Force Staff Group, Office of the Secretary of the Air Force, Headquarters U.S. Air Force, The Pentagon, Washington, DC
May 1993 - October 1995 - Director, Intelligence Directorate, Headquarters U.S. European Command, Stuttgart, Germany
October 1995 - December 1995 - Special Assistant to the Commander, Headquarters Air Intelligence Agency, Kelly Air Force Base, TX
January 1996 - September 1997 - Commander, Air Intelligence Agency, and Director, Joint Command and Control Warfare Center, Kelly Air Force Base, TX
These are the assignments of a multi-faceted intell guy who was trained as a HUMINT officer. You don;t get an Air Attache assignment behind the iron curtain without understanding HUMINT.
Just make sure you rid yourselves of it when it is no longer needed, and that day will come many years from now.As for now, definately.
It is true that FISA prohibits surveillance on US persons without a warrant.
However, Al Qaeda members and coconspirators and islamofascists do not qualify as "US Persons."
Pete: You really are confused about the issue. Probable cause is required for a warrant. The question is when is a warrant required. The dispute is over whether a warrant is required. There are many things the government can do to gather information without getting a warrant. We need to have the fight over what those are. Thus far, Congress has not engaged in this fight. It has accepted the program. Why? Fulminating about the text of the Fourth Amendment is utterly missing the point. Get informed and get serious.
I mean, get informed and get serious if you want to sound authoritative on the question. Otherwise, you're either a fool or a manipulator.
In my dreams I imagine the hearings going something like this:
Senator Roberts [Chair of Intelligence Committee]: General Hayden, thank you so much for being here today and for all the help you are going to give us as we struggle with our awesome duty to confirm a new head for the Central Intelligence Agency. And thank you for all your many years of devoted service to this country in the Air Force. Every patriotic (i.e., Republican) American acknowledges our great debt to the service you have already given.
General Hayden [Nominee to head CIA]: Thank you very much Mister Chairman. I’m proud and eager to serve this great country.
Senator Roberts: Now, General, I just have a few questions to begin with and, first I’d like to address the Terrorist Surveillance Program (TSP) that you fine folks over there at NSA put together to protect our great country from the terrorist sympathizers who walk among us (and write for the New York Times). Now my first question is …
General Hayden [interrupting]: Yes sir, your first question is to tell you how many evil terrorist plots TSP has uncovered since 9/11 and I have to say that the answer would surprise you, but it’s classified.
Senator Roberts: How did you know what I was going to ask you?
General Hayden: Well sir, I wanted to do my homework before these hearings, so I went over to NSA headquarters and read the e-mail that you and your staff have exchanged over the last few days as you drafted those questions. I’ve got the final copy here in front of me. See, I’ve got initiative.
Senator Roberts: General, are you telling me that the NSA reads internal Congressional e-mail?
General Hayden: We call it the STARS program, Surveilling Terrorists and Resistors in the Senate.
Senator Roberts: I’m a terrorist or a resistor!?
General Hayden: Oh, no, excuse me, Sir! I misspoke. I’m terribly sorry. Your e-mails and phone calls are collected by the SUQUP program, Senators who Understand that Questions Upset the People. The level of surveillance is much lower in SUQUP than STARS. All e-mails and phone calls of Senators in STARS are delivered daily to the Vice President’s Office. For noble, patriotic Senators, like yourself, in SUQUP, we deliver only a weekly summary to the VP Office.
Senator Roberts [stunned]: You intercept and read my e-mail?
General Hayden [also stunned]: You guys didn’t know this? …
General Hayden: … Whoops. …
General Hayden: Hey, let’s not tell Dick Cheney this came up, OK?
I am sure that Ann, being an expert in this subject, or at least a lot more expert than any of the rest of us here, will correct me if I stray too far, but...
FISA and the 4th Amdt. are two different subjects. They have slightly different warrant requirements, and both may or may not apply to the NSA international surveilance program. But they have to be kept separate. Congress doesn't have the power to strengthen the 4th Amdt. through FISA, just like it doesn't have the power to weaken it through legislation.
The wording of the 4th Amdt. would seem to leave out a requirement for a warrant for telephone calls. And, initially, when you had operators manually connecting calls, there really wasn't a reasonable expectation of privacy there. But later, tapping domestic telephone calls was read into the 4th Amdt.
Again, traditionally, there was no expectation of privacy for international phone calls, and without that, no 4th Amdt. right to privacy. But that may be changing, which is why a 4th Amdt. claim may be viable.
But that doesn't end the discussion. There are other 4th Amdt. exceptions, such as for exigent circumstances. For example, the police can chase a suspect into his house - without a warrant. (Remember the OJ Trial? The bloody glove was admitted over just this sort of 4th Amdt. objections). They can also sometimes break down a door if they hear screaming or gunshots coming from within. And this is most likely where the reasonableness comes in. The Administration is arguing that their surveilance is more akin to hot persuit than the normal sort of phone tapping.
Also, note that email does not have a reasonable expectation of privacy (last I knew), and thus is even less likely protected by the 4th Amdt.
That brings us to FISA. The problem there is that if a conversation is intercepted within the U.S., it is irrelevant as to whether the party in the U.S. is a U.S. Person (i.e. here legally) or is the target of the intercept. This differs significantly from when the conversation is intercepted outside the U.S., where it is not covered unless the targetted person is a U.S. Person in the U.S.
The technical problem is that when FISA was enacted, it was technically feasible, and apparently routinely done by the NSA, to tap this sort of international conversations outside the U.S. With fiber optics, it no longer is.
But that doesn't end the FISA discussion, since you also have to take into consideration the AUMF and the President's Article II powers.
Now for the political side. I don't see the Democrats being able to resist hitting the newly nominated CIA boss with the great last name with the NSA program.
But I also don't see them making any real impact there. One of the posters above made the good point that most Americans are most likely willing to buy into the President's point that when al Qaeda calls here, we want to know. They aren't expecting calls from OBL, et al., so this doesn't visibly impact their civil liberties. Rather, they see it as a needed program to fight terrorism.
So, the Democrats aren't going to make any really good points here, because, as noted, those who think the program is evil mostly oppose the President already, as well as the WoT.
But bringing this up is going to put them into a bind - they either have to come out in favor of the program (leaving open the question of why they questioned it in the first place), or they are going to look soft on the global WoT. Opining that this is "troublesome" is getting old. Opining this way, and then voting against Gen. Hayden is only going to get them painted as weak on national defense.
That is why the smart thing would be to either waive him through, or attack him as "military". But I don't think that the crazies in their base will let them do the smart thing there, and, instead, will force many of them to attack the NSA program.
As for the Republicans, at some point, party loyalty is going to guarantee that if the vote comes to the floor, Gen. Hayden will be confirmed. Some, like Specter, may not like the program, but, again, won't be able to say that it is bad.
Which of course brings us to fillibuster. I would think this a real possibility, with almost enough Democrats being from safe states that they could get away with this. But in response, the Republicans may do the nuclear option, or, since the Bolton interim appointment has gone so well, the President may just appoint him that way.
Bruce: None of my comments here have been about FISA. I was responding to a criticsm of Hayden that had only to do with the 4th Amendment. I've avoided detailed analysis of FISA, because I'm not an expert, and I don't want to crank out hack answers here. There are some deeply complicated issues there dealing with the AUMF and exclusive executive power. Those are the issues my original post says that the Senate should explore (unless it means to condone the program). But the cheap attack on Hayden about the text of the 4th Amendment -- I had to step in and shoot that down.
Ann. Sorry to go off on that tangent. And, yes, some of these are very difficult issues, and I am sure that you are much better situated to opine on them than I, given your job.
I wasn't quite sure though of where you stand here as to Gen. Hayden's answer on the 4th Amdt. Is it that he is right? Or wrong? Or that there is a lot more complexity there than he suggests? (the later is my view, though I don't have your expertise in this area).
Pete, you actually are confused (or you're deliberately distorting). Refer again to the text of his remarks. If he had had more time to explain the entire text of the fourth amendment, he could have said more and explained the different references.
Let me expand on my comment. The statement made to Hayden was: "the Fourth Amendment of the Constitution specifies that you must have probable cause to be able to do a search..."
Now, that was just wrong, and Hayden kept restating that the standard about searches and seizures is that they not be "unreasonable." That's absolutely correct as a matter of the text of the Fourth Amendment.
The follow up questions is: "But the measure is probable cause, I believe..."
The "measure" of what? Presumably, searches and seizures. Again, the questioner is wrong, unless he's shifted over to talking about the requirement for a warrant, without telling anyone.
Hayden responds: "The amendment says unreasonable search and seizure."
So, he's keeping the focus on the "search and seizure" part, and correctly saying the standard is "unreasonable." He does not say, and the words "probable cause" don't appear anywhere in the amendment.
The interchange goes on and shifts to the subject of a warrant, at which point the questioner loses track of the subject of the text of the Fourth Amendment and the key issue, which is whether a warrant is required. Of course, that's the actual hard question, and it is the one that I've avoided answering, because I don't have a professionally developed opinion on the subject. I am not an expert, and the issue is complicated.
Pete: " I certainly am not one who reads the 4th amendment as implying you can do search and seizure without a warrant:"
So then you're certainly not one who follows judicial intepretations of the Constitution or one whose opinions on Hayden's statements are worth much of anything.
Pete: Read a basic conlaw treatise or legal encyclopedia entry on the subject.
But back to the attack you made on Hayden, Pete. It wasn't about how much warrantless searching the Constitution permits. I agree that the this question is an extremely important one, but that wasn't the substance of your attack, which I presume you now concede was wrong.
Ann,
Haven't checked back here for awhile,e and thanks for the answers.
All,
Volokh just picked up the 4th Amdt. arguments and points to an Orin Kerr article analyzing the Hayden testimony. So far, most of the Volokh posters are moaning about how the 4th Amdt. has been eroded recently. I haven't made it to Orin's article yet, but expect it to be fairly critical given his previous NSA posts.
I would think that this indicates that great minds think alike, except that I know that Ann sometimes goes there, and they come here.
Also, there is some indication that the saner heads in the Democratic party are starting to back away from making Hayden's nomination into an attack on the NSA international surveilance program. We shall see if they are able to prevail.
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