Jan
27
2006

Probable Cause for Alarm

Press ignores Ex-NSA chief's ignorance of Constitution

Gen Michael Hayden

Gen. Michael Hayden

When FEMA Director Michael Brown claimed not to be aware of the evacuee crisis at the New Orleans Convention Center following Hurricane Katrina (NPR, 9/1/05), many journalists expressed astonishment that a high-ranking official could be so uninformed about a crucial aspect of his job (e.g., Nightline, 9/1/05). But when Gen. Michael Hayden, principal deputy director of National Intelligence and former director of the National Security Agency, displayed an equally astounding lack of knowledge about a matter just as basic to his job, media as a whole let it pass without comment.

The subject in question was the constitutional protections the American public has against government spying--surely a vital thing to understand for the former head of the nation's top surveillance agency, and the person currently in charge of "overseeing the day-to-day activities of the national intelligence program," as his Air Force bio states. Those protections are specified in the Fourth Amendment to the Constitution, which reads in full:

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.

Surely it's not too much to ask that the officials who are entrusted with the ability to spy on virtually any electronic communication have an appreciation of how this amendment limits that ability. Yet in a question-and-answer session at the National Press Club in Washington, D.C. on January 23--before an audience consisting largely of journalists--Hayden repeatedly demonstrated that he does not know the basic language of this key part of the Bill of Rights.

The subject came up when reporter Jonathan Landay of Knight Ridder attempted to preface a question by stating 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." Hayden interjected: "Actually, the Fourth Amendment actually protects all of us against unreasonable search and seizure. That's what it says."

Landay politely corrected him, saying, "But the measure is 'probable cause,' I believe." But Hayden insisted: "The amendment says 'unreasonable search and seizure.'" When Landay continued, "But does it not say probable--" he was interrupted by Hayden, who said, "No.... The amendment says 'unreasonable search and seizure.'"

Landay went on to ask his question, which was whether the NSA, by bypassing the special court mandated by the Foreign Intelligence Surveillance Act, had "crafted a detour around the FISA court by creating a new standard of 'reasonably believe' in place of 'probable cause.'" Hayden's response returned to the issue of the Fourth Amendment:

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, okay--and, believe me, if there's any amendment to the Constitution that employees at the National Security Agency is familiar with, it's the Fourth, all right? And it is a reasonableness standard in the Fourth Amendment. So, what you've raised to me--and I'm not a lawyer, and don't want to become one--but 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're lawful because what it is we're doing is reasonable.

By showing that he was unaware of the "probable cause" language in the Fourth Amendment, Hayden revealed that his insistence that it was legal for the NSA to conduct warrantless surveillance was not based on even a nodding familiarity with the constitutional issues involved. Given that Hayden's talk was part of a coordinated Bush administration publicity campaign to stress the legality of such surveillance, his demonstration of ignorance should have been a central point in the subsequent coverage. Instead, most news outlets that covered his speech chose to ignore his exchange with Landay and the knowledge gap it revealed.

The Philadelphia Inquirer, the flagship of the Knight Ridder chain that employs Landay, did publish a transcript of his exchange with Hayden (1/24/06)--though even the Inquirer does not seem to have had a story pointing out the significance of a high-ranking intelligence official not knowing that the Fourth Amendment contains a "probable cause" requirement.

Editor & Publisher, a website that covers journalism issues, carried a story on January 23 with the headline, "Defending Spy Program, General Reveals Shaky Grip on Fourth Amendment." The story reported that Hayden "appeared to be unfamiliar with the Fourth Amendment to the U.S. Constitution when pressed by a reporter with Knight Ridder's Washington office--despite his claims that he was actually something of an expert on it."

On MSNBC's Countdown (1/24/06), host Keith Olbermann played video of the exchange, followed by a reading of the Fourth Amendment. "It's hard to tell which is more frightening for those of you in favor of continuing the democracy, the mistake itself, or the general's insistence that it was not a mistake," Olbermann commented. "Well, maybe they have a different Constitution over there at the NSA."

Most outlets, however, ignored Hayden's inaccurate claims about the Fourth Amendment--even while covering other aspects of his talk. The New York Times (1/24/06) quoted Hayden, from his National Press Club speech, asserting that the NSA is well-versed in what the law allows in terms of spying:

"I'm disappointed, I guess, that perhaps the default response for some is to assume the worst," General Hayden said. "I'm trying to communicate to you that the people who are doing this, OK, go shopping in Glen Burnie and their kids play soccer in Laurel," he added, referring to suburbs near NSA headquarters in Maryland. "And they know the law," he continued. "They know American privacy better than the average American, and they're dedicated to it."

The clear evidence from the same speech that the former NSA head does not, in fact, "know the law," was not included in the story.

The Associated Press (1/24/06) actually quoted from Hayden's exchange with Landay without pointing out that the constitutional assertion that he was making was patently false:

Under the Foreign Intelligence Surveillance Act, government officials had to prove to a secretive intelligence court that there was "probable cause" to believe that a person was tied to terrorism. Bush's program allows senior NSA officials to approve surveillance when there was 'reason to believe' the call may involve al-Qaeda and its affiliates. Hayden maintained that the work was within the law. "The constitutional standard is reasonable.... I am convinced that we are lawful because what it is we are doing is reasonable," he said at the National Press Club.

By attributing the phrase "probable cause" to congressional legislation, and then allowing Hayden, without rebuttal, to claim that the Constitution offered a different standard, the AP accomplished nothing except misinforming its readers.

The First Amendment to the Constitution extends special protection to the press because the framers believed that an unfettered press would help to protect the other rights that the Constitution guaranteed. The lackadaisical media response to the revelation that a high-ranking government official doesn't even understand what those rights are can only make one worry that the framers' trust was misplaced.