Michael Hayden: "probable cause" is not in the 4th Amendment

YOUTUBE ^ | JUNE 17, 2013 | mildlybrilliant

[DesertRhino]

A fine post, and a nice clean reference to the age of reason and mathematics. Your fine logic stands in clear opposition to the lies and rationalizations of a petty tyranny.

[Phlyer]

liberal judges, which only seem to benefit criminals.

That is the core of the problem. To the statist mind, all authority - and therefore, inevitably - responsibility are collective. No individual can be responsible (except for those in official capacity, and then it is their 'office' that has the responsibility and authority) and so no individual should expect the state to recognize any individual authority, of which the authority over private property is one of the most important.

Conversely, since no individual is responsible for anything, then criminals are not responsible for their own actions. They are the 'victims' of 'society' and must be protected from their own folly. Thus, the statist judges (I don't consider them 'liberal') seek to equalize everyone who has no state-established office - the law-abiding are not to be trusted or expected to exercise good judgment any more than demonstrated criminals.

Ultimately, the statist does not respect the people. And people with self-respect would never voluntarily allow a statist government to come to power.

Which shows how har we have fallen since, "We, the People," set up this nation.

[DesertRhino]

“In this particular situation Article 2 of the Constitution overrides the 4th Amendment.
You’re trying to revive a leftwing argument that was shot down in 2006”

So then you posit that the executive branch possesses the natural power to override the 4th amendment? Interesting. Do they also have the power to declare the 2nd no longer applies?

For convenience sake, I propose we call this newfound presidential power “The enabling act”. (look it up on the google)

[Ben Ficklin]

"That whole probable cause thing is a red herring"

Correct. The real issue was edited out of the video, beginning at 37 seconds. And abb cut and pasted the transcript of the interview into #4 so we can see what was edited out.

The interviewer says "the legal standard is probable cause" then the edit begins.

It is somewhat wordy but the interviewer asks the general did he craft the detour around the FISA court. The general says he didn't craft the authorization, he was responding to a lawful order, and the AG averred to the lawfulness of the order.

The edit then ends with the general saying "just to be very clear"

Now, there are two things not known.

1. Who edited the video? That would have been either Keith Olberman/MSNBC or the UTube poster mildlybrilliant

2. Who gave the order that the general followed and the AG averred to? That would have been Bush or Cheney.

[DesertRhino]

“The legal opinion is that the Executive Branch, the prez, “must take care that the laws be faithfully executed”. Which overrides the legislative branch’s statues on warrantless surveillance”

So,,,,, to faithfully -execute- the law, you argue the president can override a properly passed and presidentially signed law. That’s rather circular, isn’t it? By that logic, the president at anytime can simply invalidate any law he pleases? IE,,what law was being “executed” under article II by the president overriding a properly passed and signed law?

Or maybe you misunderstood what is meant by the term “execute” a law. It means “enforce” the statute on warrantless surveillance, not execute it as in “put it to death”.

[Ben Ficklin]

You understand that I am not the one making the argument. I am merely posting the argument that can be found on the internet.

[devolve]

.
.

“MAY”

is not strict scutiny

-

“SHALL”

is “Strict Scutiny”

-

4th Amendment:

“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.”

—

- All the jailhouse lawyers can go back to Media Matters now....

.
.

[xzins]

Thank you. I think I’m hearing on this thread that since the constitution mentions the executive that the other portions of the constitution are of no effect.

Strange logic.

[PhilDragoo]

"How many divisions does
the Constitution have?"

[SoldierDad]

Ping to view later.

[holden]

I wish the questioner had inserted a parenthesis to ask the general if the 4th Amendment actually contained “probable cause”, would he feel compelled to follow such a requirement, since he had repeatedly sworn his allegiance to the Constitution in his oaths of office.

HF

[444Flyer]

There is no such thing as ‘inalienable rights’ to these people.

[dennisw]

dittos///// Libs create the problem by importing so many Muslims via immigration, via our abused refugee programs and let even more Muslims come here on visas and never make them leave. Then the Libs and Republicans come up with the solution that all Americans must be spied on and have internet and electronic trail data collected on to stop the problem>>>>

>>> The over paid idiots Dem+Republican started this problem in the first place

[sarasmom]

Well stated.

(Balance redacted, althought the NSA probably already recorded my keystrokes)

[OneWingedShark]

I read the transcript posted by abb (it was the post to which I responded), and what Hayden said was that “probable cause” is not the standard for whether a search may be undertaken, and that the Fourth Amendment merely requires that the search be “reasonable.” Hayden is correct about that point; the Fourth Amendment covers two separate things—searches and seizures generally, and when the government may issue a warrant—and “probable cause” is only required for the issuance of warrants.

Not quite, the Fourth reads:

Amendment IV
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.

The first portion is a complete clause: The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated. The intent here is clear, all searches and seizures of an unreasonable nature are prohibited. Period.

The second half can also be divided as such:

• 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.

This makes clear something that is commonly held in error — probable cause is not in itself grounds for a search/seizure (abridging the need for a warrant, or so the Law Enforcement industry would have us believe) but is instead the cause/justification for issuing a warrant. Another thing that is overlooked is that the oath/affirmation is made to the court and so can be perjury.

[chessplayer]

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.

---

Obviously they are NOT familiar with it.

[OneWingedShark]

In this particular situation Article 2 of the Constitution overrides the 4th Amendment.

Apparently you miss the concepts of amendments — they alter and override the document that they are amending. Even the preamble to the Bill of Rights explains this:

in order to prevent misconstruction or abuse of its powers, that further declaratory and restrictive clauses should be added

Therefore the 2nd Amendment restricts even the power of taxation the Government has, or the Commerce Clause — let that sink in and consider the implications.

[OneWingedShark]

So,,,,, to faithfully -execute- the law, you argue the president can override a properly passed and presidentially signed law. That’s rather circular, isn’t it? By that logic, the president at anytime can simply invalidate any law he pleases? IE,,what law was being “executed” under article II by the president overriding a properly passed and signed law?

Actually no; if a normal legislative act is contrary to the Constitution is it null and void — moreover, if the Constitution being superior law is countermanded by normal legislative acts then to faithfully execute the law means to cleave to the Constitution and to reject the legislative act for the usurpation that it is.

[OneWingedShark]

In order to solve our current problem (i.e. terrorism), other means than wiretapping must be used. For instance, stop importing terrorists, export the ones that are already here, and permit the people of this nation to speak out - loudly - against the enemy’s ideology.

And allow/encourage the people to arm themselves and see to their self-defense.

[AuH2ORepublican]

I believe that what you said is exactly what you said: the “probable cause” standard applies only to the issuance of warrants—it is a precondition for their issuance—and has no applicability to the question of whether a search is or is not reasonable. You do raise a good point that I hadn’t mentioned, which is that, while “probable cause” places, in almost all respects, a higher burden on the government than does “reasonableness,” it is certainly possible for their to be probable cause to conduct a search (e.g., there is solid evidence that a person stole someone’s college ring and swallowed it when about to be arrested, yet the search proposed be unreasonable (e.g., a forcible laparoscopy to locate the ring).