Back in January, former NSA Director Michael Hayden spoke at the National Press Club. As we all remember, it appeared that he didn't know the fourth amendment.
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Well, during his hearing the other day, Diane Feinstein got a chance to see if he brushed up on his law since then. See below.
FEINSTEIN: Thank you.
I want to ask you some questions about the Fourth Amendment. And I know I don't need to read it for you, but just for the record, let me quote it. "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 warrant 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," end quote.
Do you believe the Fourth Amendment contains a probable cause standard?
HAYDEN: It clearly contains a probable clause standard for warrants to conduct searches. There's the broader phraseology. And I've actually talked to some of my relatives who are in law school at the moment about the construction of the amendment, which talks in a broad sense about reasonableness, and then, after the comma, talks about the probable cause standards for warrants.
The approach we've taken at NSA is certainly not discounting at all, ma'am, the probable cause standard and need for probable cause for a warrant. But the standard that is most applicable to the operations of NSA is the standard of reasonableness -- you know, is this reasonable?
And I can elaborate a little bit more in closed session, but for example -- for example, if we have a technology that protects American privacy up to point X in the conduct of our normal foreign intelligence mission, it is reasonable, and therefore we are compelled, to use that technology.
HAYDEN: When technology changes and we can actually protect privacy even more so with the new technology, "reasonable" just changed and we must go to the better technology for the protection of privacy. It's that reasonableness debate that informs our judgment.
So he had a chance to go back and meet with his legal team and he spoke to some law students? The former head of the NSA is getting his law advice from people who haven't passed the bar? No wonder he thinks article 2 supersedes all laws. Fortunately, Feinstein wasn't having it.
FEINSTEIN: Let me ask you: that "reasonable" standard is your standard. It's not necessarily the law because the Fourth Amendment very specifically states, in Judiciary, we had former FISA judges come before us. They said, in effect, in their court, the probable cause standard was really a reasonable suspicion standard.
Now you're creating a different standard which is just, as I understand it, just "reasonableness."
HAYDEN: No, ma'am. I don't mean to do that. And Lord knows, I don't want to get deeply into this because, I mean, there are serious questions of law with people far more expert than I.
To give an example, purely illustrative and hypothetical, NSA, in the conduct of its foreign intelligence work, in the conduct of its foreign intelligence work, intercepts a communication from a known terrorist, let's say, in the Middle East. And the other end of that communication is in the United States.
One end of that communication involves a protected person. Everything NSA is doing is legal up to that point. It is targeting the foreign end. It has a legitimate reason for targeting it and so on.
But now, suddenly, we have bumped into the privacy rights of a protected person. Now, no warrant is involved. We don't go to a court.
HAYDEN: Through procedures that have been approved by this committee, we must apply a standard to protecting the privacy of that individual.
And so there we -- we've touched the privacy of a protected person. But there are clear regulations held up to the reasonable standard of the Fourth Amendment, but not the warrant requirement in the amendment, ma'am.
FEINSTEIN: Well, I'd like to debate that with you this afternoon, if I might.
Well there, she lost me. I can't see why she rolled over so easily. He didn't even have to pull out his closed hearing trump card; she gave it to him. Now I admit, I have even less legal knowledge than the Hayden brain trust, but does his position have any merit? I can't see how you can interpret reasonable to mean what is reasonably technically feasible to do.
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