Privacy SOS

Former NSA director Mike Hayden: No “probable cause” in Fourth Amendment

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Watch Mike Hayden debate Glenn Greenwald on the surveillance state, Friday May 2 at 7PM eastern.

In this clip from Keith Olberman's old MSNBC program, we see reporter Jonathan Landay (now of McClatchy DC) interviewing former NSA director Michael Hayden (now of the Chertoff Group, Motorola Corporation, and George Mason University) about the Fourth Amendment. This was in 2006, after the Bush administration's warrantless wiretapping program was exposed to the public. Hayden's remarks display a shocking ignorance of the law:

Landay: 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–

Hayden: Actually, the Fourth Amendment actually protects all of us against unreasonable search and seizure–

Landay: But–

Hayden: That's what it says.

Landay: But the measure is probable cause, I believe.

Hayden: The amendment says unreasonable search and seizure.

Landay: But does it not say probable–

Hayden: No!

[crosstalk]

Landay: The legal standard is probable cause.

Hayden: Just to be very clear, ok, and believe me, if there's any amendment to the US 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.

Here's the text of the Fourth Amendment. I highlighted the part about probable cause.

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.

Unfortunately, most of the mainstream media ignored Hayden's comments at the time. That's a real pity, because the question Landay was getting to still hasn't been sufficiently answered eight years later. The journalist was prescient to ask Hayden about the slippage from "probable cause" to "reasonably believe"; the warrantless wiretapping program he was referring to is now the law of the land in the United States.

There's no probable cause about it, and despite Hayden's ongoing commitment to shrill, ignorant screeching on the matter, it's hardly reasonable.

© 2021 ACLU of Massachusetts.