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:
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.

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."
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.


David said...

Hayden is good at connecting dots. The NSA program is vital to our protection as a country. The fact that he is an Air Force General, read military, is the real issue.

Since we are connecting the dots, being anti-military is popular during an election year. Whether defying the Solomon ammendment on a left-wing college campus, cut and run in Iraq, it is designed to weaken our war effort.

General Hayden is imminently qualified to run CIA in a time of war. There is one thing that makes him a problematic General; he majored in American history. Unlike most politicians he understands that if you don't learn from history you are condemned to repeat it.

We are at war. The time for talking and negotiations is way over. Let the Military do what they do best.

Troy said...

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.

Troy said...

Don't know much about Hayden. I'm a tad leery of a military guy running CIA, but not dead set against it.

Ann Althouse said...

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.

MadisonMan said...

General Hayden is imminently qualified to run CIA in a time of war.

(Chuckle) Shouldn't he be qualified now?

MadisonMan said...

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.

Simon said...

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.

Simon said...

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.

Icepick said...

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.

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.

Dustin said...


We are at war. Simply because we don't have a bomb that can set up an Iraqi government doesn't cancel that out.

David said...

If bombing Pearl Harbor was an act of war, what is your rationale that bombing the WTC, Pentagon, and a probable attack on the White House does not qualify as an act of war?

Iran with nuclear capability trying to organize muslims worldwide under the banner of a 7th century caliphate reborn should rate more comment than facile jokes about police actions.

Ms.Atwar Bhajat, a reporter in Iraq for al arabia, was recently murdered in public. The method of her murder goes beyond sadistic. Maybe it will help you stay focused on the war we are currently engaged in if you took the time to study our adversaries methods.

Richard Dolan said...

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.

Laura Reynolds said...

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.

Unknown said...


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?

Seven Machos said...

From what I have gleaned, the problem senators have (if they really have a problem) is that the CIA should be led by a civilian. The spy chief should be a civilian.

Yet, it's become quite clear that the office of John Negroponte is the office of the spy chief. And Mr. Negroponte is a civilian.

Either senators are behind the curve, which is highly probable, and they don't understand the new org chart. Again, HIGHLY probable.

I do note, though, that the initial carping is coming from the Republican side. Maybe there is some organization to this on the part of the Republicans. Maybe Bush will get thrown into the briar patch once again when Democrats start lambasting Bush for spying on Jihadists without a warrant, without knocking on the terror camp door, without probable cause, and largely based on ethnic profiling.

I'm not a conspiracy theorist, though. So I'll opt for senators not understanding how their own government currently operates.

Simon said...
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Walt said...

This just in - Rumsfeld is now in the intelligence business.

Simon said...

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.

Walt said...

I think the Tolkien connection works with wwII, which some argue is the subject of the trilogy, but it might make for a poor anaolgy here.

I only say that because at the present moment, the US and Russia are the only ones capable of ending the world right now.

With analogies aside, I think an administration that can't properly digest the pre-war intelligence on Iraq should not have indescriminate access to spy on anything and everything. If they did turn something up, who is to say that data would reach the right people in time.

Why give up freedom to protect freedom?

RogerA said...

Walt--Rumsfelt has been in the intel business via the DIA, the services intel and a few other agencies--as long as tactical versus strategic intel is kept separate, I for one would want the SecDef in the tactical intel business.

RogerA said...

Apologies: Rumsfelt = Rumsfeld; pimf

Andrew Foland said...

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.

Walt said...

That's not what he told McGovern in Atlanta last week. He clearly stated he wasn't in the intel business. Of course, we all know that the pentegon has been using our armed forces in intel missions. I just get confused sometimes on what I am suppose to believe.

JimNtexas said...

"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?"

That analogy fails. In this case both the NSA and CIA are analogous to two large engineering project management companies. The NSA specializes in electronic intelligence collection and electronic security (codes, network security), while the CIA specializes in collection of intelligence by human and other technical means, as well as countering other countries intelligence collection overseas.

Both the NSA and CIA are large government intelligence collection agencies with considerable overlap in missions. I think the NSA budget is larger than that of the CIA, certainly they are comparable. So General Hayden's NSA experience is very directly relevant to his application to become head of the CIA.

If there exists a Republican Senator with even a little backbone then that Senator will use this confirmation hearing to educate the American public on the true nature of the NSA's anti-terror collection program. This is a golden chance to counter the lie that the NSA has a "domestic spying program". The Democrats want people to think that the NSA may be listening to Mom when she calls Pop in Peoria. That is of course BS, they are simplying not unplugging the monitor if the overseas person calls into the U.S, or if persons inside the U.S. call overseas.

The NSA is listening to conversations of overseas enemies of the United States. They are not collecting for the purpose of law enforcement, they are collecting real time military intelligence. They want to be able to use intelligence in real time to stop any future 9/11 style attacks in this country, as well as attacks on our deployed military forces overseas. The exact same liberals who were screaming about "connecting the dots" a few years ago are now opposed to "connecting the dots" in real time.

I think that many liberals are so overcome with BDS that they want to see another large terror attack on the U.S. just so Bush can be blamed. The oppose the NSA program of listening to overseas persons communicating with persons in the U.S. because they recognize that this program is our best chance of stopping another 9/11.

Ricardo said...

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.

john(classic) said...

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.

Lonesome Payne said...

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.

Anonymous said...

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.)

Al Maviva said...

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.

Anonymous said...

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

Seven Machos said...

Symbol Guy -- The fourth amendment does apply to military action. Soldiers can knock your door down and kill you and they don't have to show probable cause to a judge.

Prisoners' rights do not apply outside the United States. You will note that the prisoners are in Cuba and places far-flung, not Flagstaff. The reason is precisely so that these issues can be avoided.

I would think a constitutional genius such as yourself would be a little more steeped in the law before ranting.

Seven Machos said...

does NOT apply to military action

Word Verification: pyattnwnuwrte

Joe said...

I thought the NSA program was as JimNTexas described it - we are intercepting communications from al qaeda overseas, to Americans who may or may not be their agents.
This may be simplistic, but it is war and these are enemy communications. If we can kill them, we can listen to their phone calls.
Interception of these calls is not evidence gathering for criminal prosecution subject to suppression on 4th Amendment grounds. It is purely to prevent another attack.
Whatever happened to "politics stops at the water's edge."

Walt said...

Of course, who is to say what is reasonable or unreasonable when the reasons for the search are classified. And if someone is siezed without any legal status, how can he be released since all information on his case will be deemed classified.

I want to classify my income and then file my taxes. If I am audited, they can't prove anything - my records are classified!

Ann Althouse said...

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.

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Laura Reynolds said...

Maybe, maybe, maybe, yes, because, no, none.

or it could be no, no, no, yes, because, maybe, none

Cindy said...

With apologies to Sammy Davis Jr.

Whether I'm right or whether I'm wrong

Whether I find a place in this world or never belong

It’s all about me, It’s all about me

What else can I be, I’m Quxxo you see

I live to rant, not merely survive

And won't give up this hate that keeps me alive

It’s all about me, It’s all about me

I'll go it alone, That's how it must be

Number 6 I am now, oh why can’t you see

It’s all about me, It’s all about me

Anonymous said...
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dave said...
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Laura Reynolds said...

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.

Anonymous said...
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Simon said...

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?

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The Drill SGT said...

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.

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.

newc said...

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.

teddy_kgb said...

"The fourth amendment does [not] apply to military action. Soldiers can knock your door down and kill you and they don't have to show probable cause to a judge."

But doesn't posse comitatus prevent them from knocking on our door at all?

(sorry that I'm a little late to the game, but I think this may be part of my thursday morning fact pattern)

Pete said...

In the Hayden interview, he was discussing what is needed to perform searches on American citizens on US soil, where the 4th Amendment most certainly does apply ( except in formal states of martial law, etc.),

Hayden was quite clear that, as an expert in the 4th Amendment, that it does not include the language "probable cause". Go read the interview before you comment.

And he has never, AFAIK, issued a correction or apology to this.

He claims only "reasonablmess" is needed to search a citizen.

I find this a bit frightening.

Pete said...

Hayden was talking about the Forth Amendment in the context of searches of Americans on US soil.

Read the interview. He goes on at length about how this amendment requires only a "reasonableness standard" for a search, not probable cause. I.e., it's legal if the person doing the search does it for good reason ( as determined by whom?). Probable cause means you must have evidence/information linking the person with a specific crime. A very different standard.

AFAIK, he has yet to make a retraction.

A bit scary if you ask me. He's basically rewritting reality.

Pete said...

sorry for the double post. I was still editing and must of messed up the login function

Colin said...


Let's assume that you are correct that "[the NSA] are simplying not unplugging the monitor if the overseas person calls into the U.S, or if persons inside the U.S. call overseas."

(I say 'assume' because without a proper Congressional investigation we have to simply accept the administration's claims about the program.)

But even if you are correct about the extent of the surveillance, it is still illegal under FISA to wiretap US persons without a warrant. Hayden has explained that per the president's order, the NSA has been wiretapping without a warrant and without consulting with FISA judges. That is illegal on its face, and the fact that the GOP Congress refuses to properly investigate it is simply pathetic.

You seem to think that the Democrats have been spreading misinformation about the program. If so, then why won't the administration simply answer Congress's questions about the program? Go on record regarding the extent of the program, why it's necessary, and its civil liberties implications.

Frankly, Gonzales's answers to Congress and Hayden's answers to the press have been evasive at best and dishonest at worst. If this NSA spying is really protecting us (so much so that the president instructed others to break the law to implement it), it should be simple for the administration to convince the public it is necessary.

We don't need a GOP senator with a backbone to explain this. We need an administration official with a shred of integrity to finally explain the program to the American people.


A few links re: Hayden's and Gonzales's public statements on the NSA program:

Jason said...

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."

Ann Althouse said...

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.

Ann Althouse said...

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.

aleblanc said...

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?

Bruce Hayden said...

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.

Bruce Hayden said...

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.

Ann Althouse said...

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.

Bruce Hayden said...

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 said...

Ann - I'm sorry, YOU are confused. Hayden explicitely said that the forth amendment says nothing about probable cause. Period. Maybe he MEANT "when information is being gathered for non-criminal investigations". But that is certainly NOT what he said. He was quite emphatic that the 4th amendment ONLY talks about reasonableness.

Ann Althouse said...

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.

Ann Althouse said...

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 said...

You're interpretation of the conversation MAY be what he meant, but we can only guess by looking at the context. I certainly think someone should ask him about it at the hearings.

BTW - I certainly am not one who reads the 4th amendment as implying you can do search and seizure without a warrant:

"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 first part talks about search and seizures needing to be reasonable. But then it says "no warrants shall issue, but upon probable cause". Some people think this is talking about something else, but the sentence ends "describing the place to be searched, and the persons or things to be seized".

Obviously, the second part is detailing HOW a reasonable search/seizure must be carried out.

It's a pretty obvious statement not open to a lot of interpretation.

Ann Althouse said...

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 said...

While these are two separate issues ( Hayden's statement and the true meaning of the 4th amendment", I'd like to hear how you parse the amendment so that it allows searches without warrants

Ann Althouse said...

Pete: Read a basic conlaw treatise or legal encyclopedia entry on the subject.

Pete said...

I have read many. Mostly, they say the courts have wavered back and forth about this, often letting expediency push towards the warrantless search ( when not for criminal charges) and expanding the areas considered to have reduced privacy expectations. But then the next court tends to reverse the warrantless searching. The warrantless searching hinges on whether the 2 parts of the one sentence amendment should be treated together or separately.

But I'm curious why someone who isn't a lawyer for the government would want to allow more warrantless searches. It seems like many people feel the constitution is a limiting document that they are trying to find loopholes around.

It just seems unAmerican.
Sort term expediency should not trump long-term liberty.

Ann Althouse said...

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.

Pete said...

Not at all. I'll concede he may have MEANT something different from what he said. But his words make it look like he believes the constitution allows searches, in general, of American citizens on American soil using only the condition of reasonablness, and that the rest of the 4th amendment does not exist.

I can only judge by what he has said and not said. He has never, as far as I know, talked about the existence of the "probable cause" clause in the constitution, other than to make statements denying it.

I hope he can clear up this statement at his Senate hearings.

My guess is that me meant probable cause does not apply for White House actions, that it essentially does not exist.

This matches what Gozales said explicitely to the committee on the warantless searches. G, speaking about Hayden and the program, said that the WH has the authority to perform such searches on calls between Americans within the US based on reasonableness as determined by members of the agency. Gonzales, at least, is cleary trying to drive a wedge between reasonablness and probable cause.

Bruce Hayden said...


Haven't checked back here for awhile,e and thanks for the answers.


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.

Pete said...

I hope that Hayden clears up this 4th amendment stuff. He is, from all I've heard, a very able administrator. He's gotten a lot of praise for his NSA reorg. work. He is, afaik, an excellent candidate for the job. It might be hard to find a better one.

But I don't want anybody with unAmerican attitudes in such a powerful role. He may have instituted a program that broke the 11 commandment of the NSA - "thous shall not spy on American s in the USA". It really needs clarifying.

A lot of the oposition against him is by people who are afraid he's to aligned with the Pentagon and will furhter downside the CIA's analysis role.

It's not just Democrats who are attacking him. I was surprised by the number of Republicans against this.