By Nat Hentoff in USA Today May 16, 2006
Nat Hentoff is an authority on free speech issues and the Bill of Rights
In late January at the National Press Club, Gen. Michael Hayden, deputy director of National Intelligence, was asked whether the Fourth Amendment requires probable cause for government searches of Americans.
"No," he replied. The court standard for lawful searches and seizures, Hayden added, is "unreasonable search and seizure." So reasonable suspicion is the general's standard.
Actually, this most specifically detailed of all 10 parts of the Bill of Rights goes on to require a court warrant for searches based on "probable cause" that a crime has been committed or is being planned. There are exceptions, but rarely to the high standard of probable cause.
Aware that Hayden has been head of the National Security Agency (NSA) for six years, I was not entirely surprised at his bypassing probable cause. After all, the agency's omnivorous secret warrantless eavesdropping program has given us all plenty of reasons to be concerned about privacy.
Hayden, nominated to lead the CIA, will be asked to defend such programs at his confirmation hearings that start Thursday on Capitol Hill. I'd like to ask him whether he knows that the Fourth Amendment is so specific thatit insists the warrants also "describ(e) the place to be searched, and the persons or things to be seized."
This requirement by the Framers is especially pertinent now, in light of USA TODAY's report that the NSA has collected records of billions of phone calls since the 9/11 attacks in perhaps the largest database in history.
As the paper explained, these are calls made by "ordinary Americans," not suspects. Since the NSA does not go to any court for warrants for its analysis of these records, there is no probable cause. As such, I would ask Hayden how he fits reasonable suspicion into this ever-expanding web.
This database might be shared with the CIA, the FBI and other agencies. The "call-detail" records do not have your name, address or other personal data, and the NSA is not eavesdropping. Even so, any agency can easily cross-reference those phone numbers with databases that do have your name, address and much more.
Another question I have for Hayden: Does he know why the Fourth Amendment is so insistently detailed? The answer has deep roots in pre-revolutionary America.
The colonists were subject to searches by British customs officials (and troops if need be) bearing "writs of assistance." These were wholly general search warrants that required no judicial approval and enabled the British to enter Americans' homes and businesses and turn everything upside down in search of contraband.
In 1765, outraged patriots, including Samuel Adams, formed the Sons of Liberty in Boston, and seven years later they created a Committee of Correspondence that vividly detailed these invasions.
These committees multiplied — including one formed in part by Thomas Jefferson and Patrick Henry. Jefferson wrote that these committees of correspondence "would be the best instrument for communication." As the stories of British outrages circulated, the galvanizing writs of assistance became one of the precipitating causes of our revolution.
But that was then.
A disturbing aftermath of USA TODAY's story was an initial Washington Post-ABC News poll that showed 63% of Americans approved of the NSA's dragnet. Perhaps as more information became available over the weekend, the story sunk in: A USA TODAY/Gallup Poll showed 51% against the program, with two-thirds of Americans concerned. I hope these worried folks might consider starting their own Internet committees of correspondence.
When I speak to students about the Bill of Rights, I take them to a Boston courtroom where in 1761, a prominent lawyer, James Otis, argued passionately for hours against the king's writs of assistance. He lost the case; but in the room that day was a young lawyer, John Adams, who wrote: "Then and there the child Independence was born!"
When asked about the NSA story, Hayden said, "Everything that the NSA does is lawful and very carefully done and that the appropriate members of the Congress, the House and Senate, are briefed on all NSA activities, and I think I'd just leave it at that."
I didn't hear the Liberty Bell ringing in the background.
I did some googling and his work has appeared in the Washington Post, among other publications. I thought this was worth posting
I’m going to go out on a limb here. I’m guessing that you don’t make general in the modern army without being an academy graduate. I don’t know what kind of US history they teach at the academy, but I’m guessing it’s pretty rigorous. Heck, I’m guessing Admiral Hayden and I are probably pretty close in age and I know what I learned in junior high and seniorhigh US history, before I took the three terms while I was at the U of O. We did a very complete unit on the constitution and the Bill of Rights. (that’s where I learned to spell bureaucrat, among other things) That’s why it’s hard for me to swallow the explanation that he thought that the NSA data mining was legal. He may have forgotten what was in the constitution but it had to have been covered at some point. Maybe he was asleep that week or something.
There is a scene late in the second season of Babylon 5. Two planetary systems have been at war. One side is losing, but not fast enough to suit the other. The potential winners decide to speed things up by resorting to planetary bombardment with small artificial asteroids. It doesn’t matter that they’re going to win anyway, they want the war over at a minimum of expense and loss of lives on their side. The other side? Bomb ‘em back to the stone age. Their ambassador to B5 protests that they’ve signed treaties that ban this action. The reply? “Words on paper.”
A constitution is “words on paper” too.