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General at the NSA Doesn't Know the Fourth Amendment

by Last Night in Little Rock

From Crooks and Liars is a video clip, posted today and reprised from January from Keith Olberman's Countdown on MSNBC where a General with the NSA doesn't even know what the Fourth Amendment says. And to think that these bozos are determining what is right or wrong when the NSA decides to seize our communications.

Read the transcript on Crooks and Liars or Countdown. It is pathetic. Olberman's final observation:

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.

[Crosslinked to www.FourthAmendment.com]

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  • The bozos may not be anywhere near as interested in what's actually right or wrong as they are in having access to tools that enable them to consolidate power; and it appears they will do or say anything to change the subject when questions of right or wrong are raised.

    Ignor, That's a "straw man" you use, and an "Appeal to Ridicule" and "Poisoning the Well" and a "Red Herring." Therefore, your argument has the logic of a potato.

    Re: General at the NSA Doesn't Know the Fourth Ame (none / 0) (#4)
    by Lww on Sat May 06, 2006 at 05:16:02 PM EST
    I remember after 9-11 it was "where's UBL?" That was nationwide ignorance. Sorta tells you something.

    Re: General at the NSA Doesn't Know the Fourth Ame (none / 0) (#5)
    by Tom Maguire on Sat May 06, 2006 at 05:27:58 PM EST
    I'm not sure it is a straw man - Igor is not inventing the "Usama" argument being made by Crooks and Liars. And the comments thread is pretty funny over there - apparently the FBI and the 9/11 Commission use "Usama", so Fox is not utterly alone. Oh, well. Here is the transcript of the press club appearance where Hayden made the Fourth Amendment remarks; it is at the bottom, and there is a tiny bit more context. And here is a Congressional Research Service memo dated a few days after the General's appearance and devoted to the Fourth Amendment, "probable cause", and "reasonableness" as they relate to FISA. Coincidence? You make the call. I think the memo contradicts the General, but I have only read it twice now, and I am not paid enough to try for three.

    Could one Senator block Hayden's recess appointment? My neurons seem to recall Senate recess requires unanimous consent. In the absence of unanimous consent, would Senate rules still permit recess? If not, a Senator in possesion of all of her (or his) vertebrae could deny Bush the Hayden recess appointment simply by denying recess. A recess-deprived Bush would not be pretty. If Senate rules allow some form of prolonged adjournment without formal recess, I'd rather see a Bush without recess than a General without comprehension of the Constitution heading up the CIA.

    Re: General at the NSA Doesn't Know the Fourth Ame (none / 0) (#7)
    by james on Sat May 06, 2006 at 08:12:11 PM EST
    They would move to change the rules to allow a simple majority to approve the recess.

    Re: General at the NSA Doesn't Know the Fourth Ame (none / 0) (#8)
    by james on Sat May 06, 2006 at 08:14:13 PM EST
    I remember watching the Olberman clip and the actually testimony (not just the clip section) and yes, it is bizarre this man is becoming director. But not that bizarre. He's like Rumsfield in that he is a 'ruthless bastard'. Take the quote from Kissinger/Nixon as you like it. He's heavily involved in the infighting in the intelligence departments.

    Re: General at the NSA Doesn't Know the Fourth Ame (none / 0) (#9)
    by jimakaPPJ on Sat May 06, 2006 at 08:37:17 PM EST
    Et al - This is what the man said, and he is correct.
    GEN. HAYDEN: No, actually -- the Fourth Amendment actually protects all of us against unreasonable search and seizure. QUESTION: But the -- GEN. HAYDEN: That's 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.


    Re: General at the NSA Doesn't Know the Fourth Ame (none / 0) (#10)
    by jondee on Sat May 06, 2006 at 08:56:51 PM EST
    "And he is correct." About what? What the amendment says after you amend the amendment? The forth amendment is the ENTIRE forth amendment, not just the part that Massa likes.

    Re: General at the NSA Doesn't Know the Fourth Ame (none / 0) (#11)
    by jondee on Sat May 06, 2006 at 08:58:36 PM EST
    Make that fourth amendment. Sheez!

    Re: General at the NSA Doesn't Know the Fourth Ame (none / 0) (#12)
    by ding7777 on Sat May 06, 2006 at 09:18:30 PM EST
    GEN. HAYDEN: [...] Just to be very clear -- and believe me, if there's any amendment to the Constitution that employees of the National Security Agency are familiar with, it's the Fourth. And it is a reasonableness standard in the Fourth Amendment. And so what you've raised to me -- and I'm not a lawyer, and don't want to become one -- what you've raised to me is, in terms of quoting the Fourth Amendment, is an issue of the Constitution. The constitutional standard is "reasonable." And we believe -- I am convinced that we are lawful because what it is we're doing is reasonable.
    probable cause is the standard to issue 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." PPJ, what part of probable cause you don't get?

    Re: General at the NSA Doesn't Know the Fourth Ame (none / 0) (#14)
    by Sailor on Sun May 07, 2006 at 10:14:19 AM EST
    I wonder if king george thinks he has a signing statement for the constitution too.

    Re: General at the NSA Doesn't Know the Fourth Ame (none / 0) (#15)
    by Dadler on Sun May 07, 2006 at 10:57:18 AM EST
    "Probable cause" is OBVIOUSLY a modifier for "unreasonable". That is, to not be unreasonable, a search or seizure must be the result of probable cause.

    Dadler, you are incorrect. The 4th amendment says two things: (1) searches and seizures must be reasonable; (2) warrants can be issued only on probable cause. In other words, a search or seizure can occur under the 4th amendment even if there is no probable cause as long as reasonable. A good example is a Terry stop -- which is a seizure under the 4th amendment, and there is no probable cause, but it is constitutional because it is reasonable. Likewise, searches incident to arrest are reasonable hence constitutional, even when there is no probable cause to believe that the search will reveal evidence of a crime.

    Re: General at the NSA Doesn't Know the Fourth Ame (none / 0) (#17)
    by jimakaPPJ on Sun May 07, 2006 at 12:01:53 PM EST
    Bigunit12 - See abadaba's comment directly above.

    Re: General at the NSA Doesn't Know the Fourth Ame (none / 0) (#18)
    by Dadler on Sun May 07, 2006 at 12:51:49 PM EST
    Jim, Then the fourth amendment means nothing. So you can search without a warrant if it's reasonable, but you can't get a warrant to search without probably cause? Come on, side with rationality.

    Re: General at the NSA Doesn't Know the Fourth Ame (none / 0) (#19)
    by Dadler on Sun May 07, 2006 at 12:53:18 PM EST
    That is, the framers are using "unreasonable" to mean in the absence of a warrant. Or else, what is the point of a warrant at all? There is no logic to your separation of meanings here.

    Re: General at the NSA Doesn't Know the Fourth Ame (none / 0) (#20)
    by Sailor on Sun May 07, 2006 at 03:02:40 PM EST
    A good example is a Terry stop -- which is a seizure under the 4th amendment
    No, it's not. The supremes specifically said it was because the purpose is to protect the officers, not discover evidence.

    Re: General at the NSA Doesn't Know the Fourth Ame (none / 0) (#21)
    by jimakaPPJ on Sun May 07, 2006 at 05:21:06 PM EST
    Dadler - First, let's again examine what the NSA has been doing. Monitoring calls from/to suspected/known terroists outside/inside US. It is reasonable to assume that these people are up to no good. Therefore it is not unreasonable to monitor them.

    Re: General at the NSA Doesn't Know the Fourth Ame (none / 0) (#22)
    by Sailor on Sun May 07, 2006 at 05:53:46 PM EST
    and we're just gonna take the govt's word for.

    Re: General at the NSA Doesn't Know the Fourth Ame (none / 0) (#23)
    by jimakaPPJ on Sun May 07, 2006 at 08:46:26 PM EST
    Sailor - And we await your proof otherwise.

    Re: General at the NSA Doesn't Know the Fourth Ame (none / 0) (#24)
    by Dadler on Sun May 07, 2006 at 08:53:01 PM EST
    Jim, The same government that spies on harmless peace groups, can certainly not be trusted to make savvy surveillance decisions. They haven't earned the trust. Period.

    Dadler
    Jim, Then the fourth amendment means nothing. So you can search without a warrant if it's reasonable, but you can't get a warrant to search without probably cause? Come on, side with rationality.
    Dadler, rational or not, this just isn't the isn't the way the 4th amendment is interpreted. Here's how it works, the fourth amendment only protects areas in which an individual has a reasonable expectation of privacy. It you're talking to a friend in a public restaurant, you can be overheard and don't have a reaonsbale expectation of privacy. That means that the government can listen in on your conversations without a warrant. Same way if you're talking aver a CB radio. The probable cause standard and warrant requirement only apply when the governement seeks to invade an area in which an individual has a consitutionally protected privacy interest (which is to say, a reasonable expectation of privacy). I imagine that one of the government's argument that wiretapping calls from foreign nations is legal, is that the governments in those countries can monitor the calls without a warrant. Accordingly, a party to a phone call with a person calling from syria has no reasonable expectation that the conversation will be free from government listening.

    Re: General at the NSA Doesn't Know the Fourth Ame (none / 0) (#26)
    by squeaky on Sun May 07, 2006 at 09:31:47 PM EST
    hueblu-Are you joking? No one hear is talking about conversations overheard in restuarants. Give it up.

    Squeaky
    hueblu-Are you joking? No one hear is talking about conversations overheard in restuarants. Give it up.
    I gave that as an extreme and easy to understand example. Over the last 20 years courts in the U.S. have narrowed fourth amendment rights very substantially. Most experts on 4th amendment law find it very troubling and there's a lot of literature on the subject. The government's positions aren't that outrageous inside of this framework. I agree that it's neutering the 4th amendment, but if the question is solely whether a U.S. court would find the program illegal it's not a black and white issue at all. The scary thing isn't that the administration is doing something illegal, the scary thing is that they might not be. // I'm not making this stuff up. If the fourth amendment is a great protection against government phone tapping, why do you think congress has had to pass so many federal laws limiting the government's ability to do it?

    Re: General at the NSA Doesn't Know the Fourth Ame (none / 0) (#28)
    by squeaky on Sun May 07, 2006 at 09:59:28 PM EST
    hueblue- When we reagain control of Congress this will be a hollow memory. Everything is legal that this administration does. The president says so, and so it is....for now.

    Squeaky
    hueblue- When we reagain control of Congress this will be a hollow memory.
    I doubt it. If the democrats regain control it won't be by the margin neccessary to overide a presidential veto. It'll be the same old same old unless we win in 2008.

    Re: General at the NSA Doesn't Know the Fourth Ame (none / 0) (#30)
    by roger on Mon May 08, 2006 at 05:27:43 AM EST
    Searches without a warrant are unreasonable per se. These searches may be allowed if they fit into a recognized exception to the warrant requirement. Plain view is an exception, so is search incident to arrest. Terry is a limited exception. If I am a cop, and I perform a Terry search for weapons, if I feel a baggie that MAY contain drugs (but not a weapon), I am not supposed to pull it out of the suspects pocket to search further.

    Re: General at the NSA Doesn't Know the Fourth Ame (none / 0) (#31)
    by jimakaPPJ on Mon May 08, 2006 at 06:34:42 AM EST
    Roger writes:
    Searches without a warrant are unreasonable per se
    Then why is the word "unreasonable" in it? If there were to be no exceptions, all they had to was leave "unreasonable" out. But, they didn't. et al - The fact remains that the government has and is claiming that only calls to/from internationally located terrorists from/to US Persons are being monitored. When that point is clearly made, Americans support the President's actions. When "wiretapping" is screamed, they do not. Welcome to the world of media bias and attack journalism for the good of the Democratic party. All at the expense of the country, the troops and the war.

    et al - The fact remains that the government has and is claiming that only calls to/from internationally located terrorists from/to US Persons are being monitored.
    Jim, I have posted this before and you continue to ignore it. The government's claim that this conduct is legal has yet to be judicially decided.
    The question of the scope of the President's constitutional powers, if any, remains judicially unsettled. 156 Congress has acted, however, providing for a special court to hear requests for warrants for electronic surveillance in foreign intelligence situations, and permitting the President to authorize warrantless surveillance to acquire foreign intelligence information provided that the communications to be monitored are exclusively between or among foreign powers and there is no substantial likelihood any ''United States person'' will be overheard.


    Re: General at the NSA Doesn't Know the Fourth Ame (none / 0) (#33)
    by Sailor on Mon May 08, 2006 at 09:41:26 AM EST
    actually the gov't has admitted that they tapped domestic only calls w/o a warrant.

    Re: General at the NSA Doesn't Know the Fourth Ame (none / 0) (#34)
    by Dadler on Mon May 08, 2006 at 11:15:17 AM EST
    Hues, Reasonable means having probable cause. Probable cause requires a warrant. Put the two together. That is how it is written. The first word mentioned is "unreasonable", which is then modified to mean lacking the probable cause to get a warrant.

    "actually the gov't has admitted that they tapped domestic only calls w/o a warrant." Don't matter to PPj, he'll just keep lyin'.

    The first word mentioned is "unreasonable", which is then modified to mean lacking the probable cause to get a warrant.
    I don't think that's true. If it was, reasonable suspicion wouldn't be enough for a stop and frisk or certain other searches. I think that courts have found the warrant standard highly instructive, but I don't think it's generally read as actually modifying "unreasonable." I think the warrant requirement is viewed as a very significant guide post though.

    Re: General at the NSA Doesn't Know the Fourth Ame (none / 0) (#37)
    by Sailor on Mon May 08, 2006 at 02:46:27 PM EST
    If it was, reasonable suspicion wouldn't be enough for a stop and frisk or certain other searches.
    terry stops are supposed to be for the safety of the officer, not to gather evidence.
    the Supreme Court of the United States held that police have the ability to do a limited search for weapons of areas within the suspect's control based on a reasonable and articulable suspicion that the person stopped was "armed and dangerous" and had been, is, or was about to engage in a criminal act.


    Re: General at the NSA Doesn't Know the Fourth Ame (none / 0) (#38)
    by Patrick on Mon May 08, 2006 at 02:58:58 PM EST
    Roger and Sailor, though usually wrong ;-) are right on the search issue. All searches without a warrant are prime facia unreasonable and it's the prosecutors burden to prove one of the warrant exceptions. Absent that proof, any evidence from the search will be suppressed. With one caveat,
    I am not supposed to pull it out of the suspects pocket to search further.
    If an officer can plainly determine the nature of the object, ie bag of dope, then that is considered probable cause to arrest and a further search would be legal based on the incident to arrest doctrine. Interstingly enough, the search can be done prior to the physical arrest as long as the items discovered during the search do not form the basis for the arrest.

    Re: General at the NSA Doesn't Know the Fourth Ame (none / 0) (#39)
    by Patrick on Mon May 08, 2006 at 03:06:41 PM EST
    back on topic, if the guy's qualified, he should get the job. Military personnel have held the position in the past, so I don't think that's a disqualification. If not knowing all the ramification of the 4th Amendment disqualifies someone to hold the position, then by all means, disqualify him, but I don't think that's one of the job requirements.

    Patrick
    All searches without a warrant are prime facia unreasonable and it's the prosecutors burden to prove one of the warrant exceptions. Absent that proof, any evidence from the search will be suppressed.
    This is absolutly true, but it's just a burden of proof shifting rule. It says, a warrantless search is unreasonable unless the prosecutor can show it was reasonable. Terry stops aren't the only areas where reasonable suspicion is the standard. A number of courts have held that a warrantless strip search of an arrested person (who's innocent until proven guilty) is justifiable under the Fourth Amendment if the officers have a "reasonable suspicion" that the new-coming inmate may be concealing some sort of contraban in a body cavity. The reason for the lower standard is that the courts are balancing the need for the particular search against the invasion of personal rights that the search entails. Like the terry stop, the emphasis is on safety as opposed to evidence collection. I'm pretty sure the Administration is making a similar argument here - that the NSA wiretaps aren't for gathering evidence to be used in criminal prosecutions, they're for national defense against foreign entities with which the country is at war.

    Re: General at the NSA Doesn't Know the Fourth Ame (none / 0) (#41)
    by Sailor on Mon May 08, 2006 at 04:04:24 PM EST
    Sorry for the cross thread post, but hayden is illegal even to nominate:
    (c) MILITARY STATUS OF DIRECTOR AND DEPUTY DIRECTORS. -(1)(A) Not more than one of the individuals serving in the positions specified in subparagraph (B) may be a commissioned officer of the Armed Forces, whether in active or retired status.
    (B) The positions referred to in subparagraph (A) are the following: (i) The Director of Central Intelligence. (ii) The Deputy Director of Central Intelligence. (iii) The Deputy Director of Central Intelligence for Community Management.
    And who is the deputy director?
    The Deputy Director of the Central Intelligence Agency is Vice Admiral Albert M. Calland III, USN.


    Re: General at the NSA Doesn't Know the Fourth Ame (none / 0) (#42)
    by Patrick on Mon May 08, 2006 at 04:12:56 PM EST
    HOB, True and good arguments for the gov't. I was being myopic in looking at it in a purely prosecution oriented stance.