08 May 2006

Gen. Hayden Interview

This morning, President Bush nominated General Michael Hayden to replace Porter Goss. Hayden is the Deputy Director of National Intelligence and the former director of the National Security Agency. It’s expected Hayden would face a contentious confirmation process over the administration’s domestic spying program, which is run by the NSA. This is General Hayden speaking at a rare news conference in January, defending the spy program. He was questioned by Knight Ridder reporter, Jonathan Landay.

JONATHAN LANDAY: My understanding is that the Fourth Amendment to 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.

MICHAEL HAYDEN: No, actually, the Fourth Amendment actually protects all of us against unreasonable search and seizure. That’s what it says.

JONATHAN LANDAY: But the measure is “probable cause,” I believe.

MICHAEL HAYDEN: The amendment says “unreasonable search and seizure.”

JONATHAN LANDAY: But does it not say “probable – “


JONATHAN LANDAY: The court standard, the legal standard --

MICHAEL HAYDEN: The amendment says, “unreasonable search and seizure.”

JONATHAN LANDAY: 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 would 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?

MICHAEL HAYDEN: Sure. I didn't craft the authorization. I am responding to a lawful order, alright? The Attorney General has averred to the lawfulness of the order. Just to be very clear, okay, and believe me, if there is 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, but what you've raised to me, 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.

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