NRO's White falsely claimed Media Matters accused Hayden of misrepresenting Fourth Amendment
SUMMARY: A National Review Online article falsely claimed that Media Matters for America was among a variety of groups to accuse Gen. Michael V. Hayden of misrepresenting the Constitution in asserting in defense of the administration's warrantless domestic surveillance program that the Fourth Amendment requires that the government meet only a "reasonable basis" standard rather than a stricter "probable cause" standard.
In a May 10 National Review Online article, Adam White, a former clerk on the U.S. Court of Appeals for the D.C. Circuit, falsely claimed that Media Matters for America was among a variety of groups to accuse former National Security Agency director Gen. Michael V. Hayden of misrepresenting the Constitution in asserting in defense of the administration's warrantless domestic surveillance program that the Fourth Amendment requires that the government meet only a reasonable basis standard rather than a "probable cause" standard in conducting searches. In fact, in the item to which White links, Media Matters did not "den[ounce]" Hayden for claiming that the Fourth Amendment does not require probable cause for a search. Rather, Media Matters raised the question of whether the media, in repeating Hayden's legal defense of the administration's warrantless surveillance program, would note that the administration, in a 2002 statement, appeared to express a different view of what the standard should be, at least with regard to Foreign Intelligence Surveillance Act (FISA) warrants.
White wrote:
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:
[...]
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.
White linked to a January 24 Media Matters item, excerpted below. But, contrary to White's claim, Media Matters did not accuse Hayden of falsely asserting that the constitutional standard for government surveillance is "reasonable basis" rather than "probable cause." Media Matters did note that Hayden's January 23 claim that the NSA program's use of a "reasonable basis" standard was necessary to expedite intelligence collection was inconsistent with the Bush administration's past arguments against lowering the standard of proof required for obtaining a warrant for electronic surveillance from "probable cause" to "reasonable basis." A 2002 Justice Department statement noted that such a change -- proposed by Sen. Mike DeWine (R-OH) -- might not be constitutional or necessary. From Media Matters' January 24 item:
In the past two days, numerous media outlets have -- without challenge -- cited Gen. Michael V. Hayden's January 23 claim that the Bush administration's decision to bypass the Foreign Intelligence Surveillance Act (FISA) court to monitor domestic phone conversations is legal because the program has targeted only phone calls that the National Security Agency (NSA) has a "reasonable basis to believe involve Al Qaeda or one of its affiliates." Some media have repeated the more specific claim by Hayden, a deputy director for national intelligence and former head of the NSA, that the program is legal because the Fourth Amendment requires that the government have only a "reasonable basis" for the surveillance, rather than meet the stricter "probable cause" standard required for a FISA warrant.
But as attorney and blogger Glenn Greenwald noted on January 24, even as the administration was already bypassing FISA in 2002, the Justice Department issued a statement opposing proposed legislation by Sen. Mike DeWine (R-OH) to loosen the standard for such surveillance under FISA from "probable cause" to "reasonable basis." The administration argued in the statement that lowering the standard was likely unnecessary and possibly unconstitutional. In light of this revelation, which contradicts 1) Hayden's suggestion that the stricter "probable cause" requirement under FISA was inhibiting crucial intelligence gathering and 2) the administration's claim that Congress had tacitly authorized the administration's circumvention of FISA in conducting its secret surveillance program, will the media outlets that repeated Hayden's defense of the program's legality under the Fourth Amendment now report the facts undermining that defense?
As indicated in the excerpt, Media Matters did raise the question of whether, in reporting on Hayden's claims regarding the constitutionality of the program's purported "reasonable basis" standard, the media would also note that the Bush administration had expressed a different view on the need for a lower standard and had raised questions about the constitutionality of changing the standard under certain circumstances.
Media Matters also noted in subsequent items that Hayden later contradicted himself on the NSA program's standard of proof. In his January 23 speech, he described the "reasonable basis" standard as "a bit softer than it is for a FISA warrant," and directly acknowledged that the NSA program adopted a "lower standard" than required under FISA. On the February 5 edition of Fox Broadcasting Co.'s Fox News Sunday, however, he claimed that the NSA program's "reasonable basis" standard "is in that probable cause range" established by FISA.
"...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."
OK, for too long now we've allowed such wishy-washy language to plague those who seek warrants, and to enable those danged "activist judges" to re-write the U.S. Consitution by way of fuddled opinions.
Herewith, we make sense of the nonsense.
Hear yee, hear yee!
Of course, probable cause means no more than "reasonable basis", just as oath or affirmation means no more than "wink or nod"; as in, "the Judge asked the Petitioner to swear or affirm, and the Petitioner winked and/or nodded; which was sufficient to support the issue of the warrant".
And of course describing the place is no different a condition than stating "in the United States"; as in "the Judge asked the Petitioner to describe the place where the telephones were to be tapped, and the Petitioner said "in the United States"; which was sufficient to support the issue of the warrant".
And there is no doubt whatsoever, that the requirement of describing "the persons" who are to be wire-tapped, is easily met by the term "al qaeda"; as in "the Judge asked the Petitioner to describe the persons who were to be wire-tapped, and the Petitioner said "al qaeda"; which was sufficient to support the issue of the warrant".
Which has of course been the single word to allow for any interpretation of the Constitution the administration chooses to make, that word "al qaeda" (unless it's the word terrorist).
To summarize, the court has no qualm or reservation to issuing a warrant to the administration's Petitioner "who winked and nodded in support of a wire-tap somewhere in the U.S. in order to listen in on al qaeda".
Or should we say, we would have no qualm or reservation, were the administration to even do that much; were they to even appear at all before a judge, to show probable cause or a "reasonable basis" or whatever...
An appearance they do not make, and so what difference does probable cause or a "reasonable basis" make; the point is moot when the FISA Court is circumvented.
Adam White misrepresents the Supreme Court opinion in Vernonia School District 47J v. Acton (1995). He leaves out the following sentence that immediately preceded the quote he used:
Where a search is undertaken by law enforcement officials to discover evidence of criminal wrongdoing, this Court has said that reasonableness generally requires the obtaining of a judicial warrant.
Thus if you are looking for criminals, you need a warrant and you need probable cause. In any case in which the warrantless spying is taking place, probable cause is the correct criterion.Looking for terrorists is not like the random urinalysis drug testing of athletes at issue in Vernonia. The Supreme Court ruled in that case that the searches are valid because
- the students are children who have been committed to the temporary custody of the State and thus have a decreased expectation of privacy
- the conditions of the search are no different than found in any public restroom
- the students themselves are at risk of physical harm that requires immediate intervention
These are not considerations here. The immediacy of an NSA search alone is not adequate to get the Supreme Court to approve warrantless searches, especially here where FISA already allows for after-the-fact warrants.More relevant than Vernonia would be cases regarding border searches. Warrantless searches at the border have been allowed since the First Congress. On the other hand, in Almeida-Sanchez v. United States (1973), the Court found that a search of a car 20 miles from the border was not allowed by the Fourth Amendment. Since warrants are required for searches that take place within the United States, probably cause is the correct criterion. In a concurring/decisive opinion to the 5-4 ruling, Justice Powell stated
But it is by now axiomatic that the Fourth Amendment's proscription of "unreasonable searches and seizures" is to be read in conjunction with its command that "no Warrants shall issue, but upon probable cause." Under our cases, both the concept of probable cause and the requirement of a warrant bear on the reasonableness of a search, though in certain limited circumstances neither is required.
He also notes (quoting Camara v. Municipal Court) thatexcept in certain carefully defined classes of cases, a search of private property without proper consent is `unreasonable' unless it has been authorized by a valid search warrant.
Powell also addresses an important aspect of Bush's bypassing of the FISA court:But those charged with this investigative and prosecutorial duty should not be the sole judges of when to utilize constitutionally sensitive means in pursuing their tasks.
It is clear that in cases like those in question with the NSA warrantless spying that probable cause is in fact the correct standard.
While White is correct that there are "special needs" cases where a warrant is not required, he doesn't even try to make the case that the NSA wiretapping itself is a "special need" at all.
I have seen 2 examples of these cases that do not require warrants. The one that White cites is about drug testing student athletes who consent to a drug test in order to play extra-curricular sports. The second example I looked at was the one provided by Scalia's opinion in the first example. It refered to a case where a man on probation was in the legal custody of the State Department of Health and Social Services of Wisconsin. He was subject to search without a warrant at any time as a condition of his probation.
White can't make an argument that this is a "special need" so he completely avoids any discussion of that major weakness.
The 4th Amendment warrant clause was specifically written to deter this kind of government abuse. Unless White can demonstrate how this is a "special need" his argument is pointless and the ridicule of Hayden is completely justified.
I am usually quite satisfied with the intelligibility of MMFA writers.
This peice, by contrast, starts with an imposingly long sentence. I don't think it makes itself clear to the lay reader. I even happened to listen to Landay's questions at the time, and had been quite impressed with them, and left a couple comments on Glenn Greenwald's blog about them (Was I the first? Seemed like it at the time).
Again, MMFA is great. I often find myself linking to your corrections of media mistakes.