General Michael V. Hayden has been identified by unnamed newspaper sources as a frontrunner to be named Director of Central Intelligence in place of Porter Goss, whose resignation was announced today.

In January 2006 General Hayden advanced a remarkable theory to vitiate the Fourth Amendment of the Constitution and justify unwarranted interception and use of communications to and from “U.S. persons,” principally US citizens. In a speech at the National Press Club [1] General Hayden said, in part:

“Inherent foreign intelligence value is one of the metrics we must use. Let me repeat that: Inherent foreign intelligence value is one of the metrics we must use to ensure that we conform to the Fourth Amendment’s reasonable standard when it comes to protecting the privacy of these kinds of people. … [T]he standard of what was relevant and valuable, and therefore, what was reasonable, would understandably change, I think, as smoke billowed from two American cities and a Pennsylvania farm field. And we acted accordingly.”

The Fourth Amendment states: “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.

After General Hayden had delivered his remarks the floor was opened for questions. The following exchange took place between Hayden and Jonathan Landay of Knight-Ridder:


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 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. You used the terms just a few minutes ago, “We reasonably believe.” And a FISA 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 in 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.

From General Hayden’s reading of the Fourth Amendment it follows that the State must seek a search warrant only when it proposes an unreasonable search. Reductio ad absurdum.

Or we could ask how ‘reasonableness’ is established, and how the issue is resolved if the State’s claim to ‘reasonableness’ of a specific search—here a program of interceptions—is contested. General Hayden’s position is that he, as Director of NSA, determined ‘reasonableness’; that the program was and ought to have remained secret; and that therefore only those who were properly privy to the secret could have contested it, and then only within the limited circle of those entitled to the secret. Hence Congressional oversight or appeal to the Courts is precluded, unless someone who has learned about the secret intercept program goes public.

General Hayden’s position also neglects the fact that there is law—an Act of Congress—which expressly prohibits what he chose to do as Director of the NSA and defended in January as Principal Deputy Director of National Intelligence.

Title 50 § 1802(a)(1) authorizes warrantless electronic surveillance to acquire foreign intelligence information, subject to some conditions, provided “there is no substantial likelihood that the surveillance will acquire the contents of the communication to which a United States person is a party;” [This distinguishes “content” from facts that might be gathered about a transaction.] Note that one US person is enough. Title 18 § 2511 (2)(f) states in part that “the Foreign Intelligence Surveillance Act of 1978 shall be the exclusive means by which electronic surveillance … and the interception of domestic wire, oral, and electronic communications may be conducted.” One term, setting scope, is domestic. For domestic surveillance FISA provides the “exclusive means”. If domestic surveillance does not follow the terms of the FISA Act it is illegal. Of course, as everyone including the chairman and ranking member of the Senate Judiciary Committee has said, we don’t know exactly what NSA did, because they won’t say. Secret.

We can, however, work General Hayden’s language a bit further. Not every person in the United States is a “United States person”, despite General Hayden’s attempt to convince his audience that any terrorist who stepped across the border would become protected from surveillance. In General Hayden’s words “And by the way, ‘U.S. person’ routinely includes anyone in the United States, citizen or not.” But 50 USC §1801(i) defines a “United States person” as “a citizen of the United States, an alien lawfully admitted for permanent residence (as defined in section 1101(a)(20) of Title 8)” and further defined associations and corporations. [3] “So, for example,” Hayden continues, “because they were in the United States—and we did not know anything more—Mohamed Atta and his fellow 18 hijackers would have been presumed to have been protected person, U.S. persons, by NSA prior to 9/11.” But not thereafter? What General Hayden does not put on the table is that the law does not ban intercepts but distinguishes those intercepts which may be made without warrant, with Executive approval from those which may only be undertaken pursuant to court-issued warrant, subject to the conditions stipulated in law. The plain meaning of General Hayden’s subsequent lines is that the communications of US persons are intercepted and judged, despite the law. “If the U.S. person information isn’t relevant, the data is suppressed.”


Whether General Hayden is actually nominated to succeed Porter Goss as CIA Director or not, the claim that the Executive can undertake warrantless interception whenever it says that doing so is ‘reasonable’ is pernicious and should be confronted head on. Hayden’s remaining as Principal Deputy Director of National Intelligence after his January 23rd remarks is further evidence of problems which few Congressional Republicans, and no one in the White House, seems inclined or ready to address.

[Note 1] Remarks by General Michael V. Hayden, Principal Deputy Director of National Intelligence and Former Director of the National Security Agency, Address to the National Press Club, “What American Intelligence & Especially the NSA Have Been Doing to Defend the Nation,” Natonal Press Club, Washington, D. C., January 23 2006. http://www.fas.org/irp/news/2006/01/hayden012306.pdf

[Note 2] http://www4.law.cornell.edu/uscode/html/uscode50/usc_sec_50_00001809—-000-.html

[Note 3] And the Congressional Research Service called attention to this definition in Elizabeth B. Basan, “The Foreign Intelligence Surveillance Act: An Overview of the Statutory Framework and Recent Judicial Decisions,” 22 September 2004, CRS Report RL30465, p. 11 note.

[Bruce’s Blog: 2006.05.06. Post: Bxx Short Link p=36. Front Door Index: http://blog.learnworld.com/. Permalink: http://www.learnworld.com/DESIGN/uncategorized/❄-michael-v-hayden-‘reasonable’-surveillance/]

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