News Release

Does Gen. Hayden Know What the Fourth Amendment Says?

As part of the Bush administration’s response to the revelations of warrantless domestic spying by the National Security Agency, a former head of the NSA, Gen. Michael Hayden, now the nation’s second-ranking intelligence official, spoke Monday at the National Press Club.

Gen. Hayden disputed a questioner’s statement that the Fourth Amendment requires a showing of “probable cause,” a reference to the need for a judicial warrant, for surveillance. The Amendment only mandates that a search be “reasonable,” Hayden argued. But the Fourth Amendment does in fact also mandate “probable cause.” (For an excerpt of the exchange, see below.)

Hayden said that “if there’s any amendment to the Constitution that employees of the National Security Agency are familiar with, it’s the Fourth.”

Hayden also claimed on electronic surveillance: “I have two paths in front of me, both of them lawful, one FISA, one the presidential — the president’s authorization.” However, the Foreign Intelligence Surveillance Act states that it “shall be the exclusive means by which electronic surveillance … may be conducted.” [FISA; 18 U.S.C. Sec. 2511(f)]

CHRISTOPHER H. PYLE
Professor Pyle is co-author of the book The President, Congress, and the Constitution and author of the book Military Surveillance of Civilian Politics. He said today: “Gen. Hayden says he is bound only by half of the Fourth Amendment — the requirement that searches be reasonable. He ignores the second clause, which requires warrants based on probable cause. He ignores the FISA statute, which requires probable cause and says that judges, not generals, decide when probable cause exists. The general admits that he disregarded the FISA law and the FISA court, which is a felony.” In 1970, Pyle disclosed the U.S. military’s surveillance of civilian politics and worked as a consultant to three Congressional committees, including the Church Committee — which wrote the FISA statute. Pyle is currently a professor of politics at Mount Holyoke College.
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JONATHAN TURLEY
Turley is a professor of Constitutional law at George Washington University and has written and practiced in the surveillance and national security areas for many years. He said today: “It was an extraordinary event. Like President Bush, Gen. Hayden stands accused of committing federal criminal acts. His primary defense is that my lawyers told me I could do it. That is hardly a defense. What he did not address was the clear violation of the exclusivity provision of federal law, where it expressly restricts such surveillance to Title III [the federal wiretap law] and FISA. His appearance should reaffirm the need for comprehensive congressional hearings, particularly in the House, as soon as possible.”
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Here is a portion of the Hayden transcript; a full transcript is available at the web page of the Office of the Director of National Intelligence.
For video, do a search on Michael Hayden at C-SPAN’s website.

QUESTION: Jonathan Landay with Knight Ridder. I’d like to stay on the same issue, and that had to do with the standard by which you use to target your wiretaps. I’m no lawyer, but my understanding is that the Fourth Amendment of the Constitution specifies that you must have probable cause to be able to do a search that does not violate an American’s right against unlawful searches and seizures. Do you use —
GEN. HAYDEN: No, actually — the Fourth Amendment actually protects all of us against unreasonable search and seizure.
QUESTION: But the —
GEN. HAYDEN: 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.
QUESTION: The legal standard is probable cause, General. … I’d like you to respond to this — is that what you’ve actually done is crafted a detour around the FISA court by creating a new standard of “reasonably believe” in place [of] probable cause because the FISA court will not give you a warrant based on reasonable belief, you have to show probable cause. Could you respond to that, please?
GEN. HAYDEN: Sure. I didn’t craft the authorization. I am responding to a lawful order. All right? The attorney general has averred to the lawfulness of the order. Just to be very clear — and believe me, if 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.

“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.”
Fourth Amendment of the Constitution

For more information, contact at the Institute for Public Accuracy:
Sam Husseini, (202) 347-0020; or David Zupan, (541) 484-9167