Former CIA/NSA Director Michael Hayden on the Fourth Amendment

Today, in further information obtained through Snowden’s leaks, The Guardian reported that the NSA has been spying on EU missions and the embassies of France, Italy and Greece. (They bugged their fax machines…)

Former director of the CIA and the NSA Michael Hayden went on Face the Nation and said that A) Europeans shouldn’t get all worked up, seriously, what’s the big deal guys? Spies are gonna spy. And B) that the Fourth Amendment “is not an international treaty.” This is a very odd thing to say because I’ve never once heard anyone claim it was. I’m pretty sure that’s not even the problem. 

But this is not the first time Hayden has said weird, unsettling things about the Fourth Amendment. Back in 2006, he had an exchange with reporter Jonathan Landay who pushed him on warrantless wiretapping under the Fourth Amendment. Hayden tried to talk over Landay, and then said both that the Fourth Amendment did not require probable cause and that what the NSA had done was just fine because it was “reasonable.” 

Here’s part of that exchange:

Landay: The legal standard is probable cause, General. You used the terms just a few minutes ago, “We reasonably believe.” And a FISA [Foreign Intelligence Surveillance Act] court, my understanding is, would not give you a warrant if you went before them and say, “We reasonably believe”; you have to go to the FISA court, or the attorney general has to go to the FISA court and say, “We have probable cause.” And so what many people believe - and 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?

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 rest of it was posted by Landay here.

Just useful to bear in mind NSA thought processes when it comes to legal interpretations. Just yesterday it was reported that 26 senators wrote a letter to National Intelligence Director James Clapper expressing concern over the NSA’s interpretations and justifications under the Patriot Act, saying:

“We are concerned that by depending on secret interpretations of the PATRIOT Act that differed from an intuitive reading of the statute, this program essentially relied for years on a secret body of law.”

I think we’re probably quite justified in being concerned about the NSA’s personal interpretations of the law when it comes to where rights end and espionage begins. 

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