Sunday, May 07, 2006

No on Hayden

The consensus seems to be that Michael Hayden will be nominated as the replacement for hack partisan and alleged panderer Porter Goss. Hayden is the current head of the NSA, and has been a vocal (if factually challenged) defender of the illegal warrantless wiretapping.

Speaking at the National Press Club, he betrayed his confusion in this Q & A:

QUESTION: 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.

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.
For the record, Hayden is right that the amendment forbids unreasonable search and seizure, but wrong in saying that it isn't about "probable cause." Unreasonable searches are defined as those lacking probable cause. If this is how familiar NSA employees are with the 4th amendment, we've got real problems.

That alone makes me think he's the wrong choice. The CIA has a history of illegal surveillance of Americans. As such, it's important that the person in charge have a demonstrated respect for the Constitution and the laws of the nation. Hayden betrayed those laws in illegally tapping American citizens' calls.

All of which makes me glad to hear the House Intelligence Committee Chairman say that Hayden Is "the wrong choice".

His reasoning is slightly different. His concern is principally that Hayden will turn the CIA into a branch of the military, since Hayden is currently a military officer. And even were he to resign his commission, I'm not sure it would erase a lifetime of service to military goals, rather than the broader goals of civilian intelligence gathering.