Editor’s Note (5/10/06, 9:07 P.M.): This article erroneously included Media Matters among a group denouncing General Hayden for Fourth Amendment misrepresentations. National Review Online apologizes for the error.
General Michael Hayden has been nominated to direct the CIA, but his confirmation may have less to do with the CIA than with the formerly Hayden-led National Security Agency (NSA)–or, more specifically, with the NSA’s widely-publicized surveillance of communications between U.S. persons and suspected terrorist organizations. Already, critics point to Hayden’s January 2006 speech at the National Press Club, where his explanation of the rights afforded by the Fourth Amendment was received with great hostility.
Hayden was right and his critics were wrong. The next CIA director’s understanding of the Fourth Amendment entirely comports with the text of the amendment and with the Supreme Court’s interpretation of it.
In his January speech, Hayden was confronted by Knight-Ridder’s Jonathan Landay over the protections of the Fourth Amendment. The exchange, reprinted Monday on Editor & Publisher’s website, bears reprinting in full:
LANDAY: 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 do 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.
LANDAY: But the —
GEN. HAYDEN: That’s what it says.
LANDAY: But the measure is probable cause, I believe.
GEN. HAYDEN: The amendment says unreasonable search and seizure.
LANDAY: But does it not say probable —
GEN. HAYDEN: No. The amendment says —
LANDAY: The court standard, the legal standard —
GEN. HAYDEN: — unreasonable search and seizure.
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’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?
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.
Hayden’s critics unanimously sided with Landay; sharp (often mocking) denunciations quickly appeared on Media Matters, Daily Kos, Countdown with Keith Olbermann (“Well, maybe they have a different Constitution over there at the NSA”), and elsewhere.
This week, following Hayden’s nomination, Editor & Publisher republished the Hayden-Landay exchange under the headline, “Hayden, Likely Choice for CIA Chief, Displayed Shaky Grip on 4th Amendment at Press Club.” And just yesterday, Fred Kaplan wrote an article for Slate in which he relates part of the exchange. He then comments, “This is startling. Elsewhere in the speech, Hayden said, ‘If there’s any amendment to the Constitution that employees of the National Security Agency are familiar with, it’s the Fourth.’ And he doesn’t know that it requires ‘probable cause’ as the criterion for ‘reasonable’ search? … Hayden may have dug his own hole with this one.” The speech will probably be reprinted by many other critics in coming weeks, and an enterprising member of the Senate Intelligence Committee may very well quote the speech during Gen. Hayden’s confirmation hearing. But such critics would read the Fourth Amendment as poorly as Landay did.
As the Fourth Amendment provides (emphasis added),
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.
On its face, the amendment only provides for protection against unreasonable searches and seizures, while it later provides that no warrant shall issue without “probable cause.” Landay and Hayden’s critics mistakenly apply the “probable cause” requirement to the “searches and seizures” provision. That reading is erroneous on its face; to apply the amendment’s warrant requirements to the searches and seizures clause would also require that searches be supported “by oath or affirmation,” with the objects of the search described in advance. Hayden’s reading–that searches must only be “reasonable”–is the better reading.
Hayden’s critics’ mistaken reading of the Fourth Amendment is not even supported by the Supreme Court’s decisions. True, the Supreme Court, in interpreting and applying the searches and seizure provision, has in many cases equated “probable cause” with “reasonableness,” even in cases where a warrant is not required. But the Court has explicitly warned that the two terms are not equivalent in all circumstances. In the Vernonia School District 47J v. Acton (1995), for example, the Court roundly rejected Hayden’s critics’ reading of the amendment (emphasis in original):
Warrants cannot be issued, of course, without the showing of probable cause required by the Warrant Clause. But a warrant is not required to establish the reasonableness of all government searches; and when a warrant is not required (and the Warrant Clause therefore not applicable), probable cause is not invariably required either. A search unsupported by probable cause can be constitutional, we have said, “when special needs, beyond the normal need for law enforcement, make the warrant and probable-cause requirement impracticable.”
Critics can argue whether the government’s surveillance program satisfies the “special needs” requirement spelled out by the Supreme Court, but they can’t argue that the Fourth Amendment (either on its face or as interpreted by the Supreme Court) requires that all searches be supported by probable cause. Such criticism of Gen. Hayden would be both unwarranted and unreasonable.
–Adam J. White was recently a clerk on the U.S. Court of Appeals for the D.C. Circuit. His article on Justice Robert Jackson’s draft opinions in the Korean War-era Steel Seizure Cases will appear in the Albany Law Review later this year.