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

YOUTUBE ^ | JUNE 17, 2013 | mildlybrilliant

[Ben Ficklin]

What I think and what you think are irrelevant.
Its what the court thinks.

[ButThreeLeftsDo]

BTTT

[BarnacleCenturion]

“What I think and what you think are irrelevant.
Its what the court thinks.”

If he’s not getting warrants there is no court involved here. He’ll just do whatever he thinks is reasonable and there will be no oversight because it’s all classified.

[Bronzewound]

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.

So, once again, Eric Holder (and thus, Obama) has approved this subversion.

[Portcall24]

Another AF General with a plexiglass stomach so he can see where he’s going. Damn this gets old. The standard for being a General Officer used to be that you were a commander of a line unit, somewhere...fighter squadron, airlift wing, etc. You get the picture. Guess how many line units this idiot has commanded. None. He’s been nothing but a staff pute his whole military career.

[Ben Ficklin]

"If he's not getting warrants....."

He's not there and hasn't been there since 2005.

[Count of Monte Fisto]

What an utter, ignorant fool this General is

The General is not stupid and he is not ignorant. He knows what the Constitution says and he knows what it means. He doesn't care. He is playing a lawyer's word game to sell tyranny. There are a lot of people that buy into it.

[Salvavida]

I had no idea Gen Hayden went to public school.

[BarnacleCenturion]

“He’s not there and hasn’t been there since 2005.”

Well, that’s what I thought as well. But he is speaking in the present tense:

“I am convinced that we are lawful because what it is we’re doing is reasonable”

So he is either delusional or never really left.

[Texas Fossil]

Bump!

[Ben Ficklin]

"But he is speaking in the present tense"

No, the video in which he is speaking is from 2006.

In 2006 there was a court case: Center for Constitutional Rights v Bush.

[xzins]

Article 2 of the Constitution is about the Executive Branch and has nothing to do with the 4th amendment in terms of wording.

The amendment says “probable cause” and those words have meanings. Their meanings are not “reasonable belief.”

[Carry_Okie]

SO maybe this massive govt intrusion into individual liberty did begin under “Bush and Cheney” but the intent of gathering and use of individual information under o’bama sure isn't the same

The ends do not justify the means. The Constitution is very clear about limiting POWERS for exactly that reason. What Bush and particularly Cheney did was to amass power that in the hands of Zero are nothing short of disastrous.

[AuH2ORepublican]

“There is nothing in the amendment that indicates that there is ever a situation that allows a search or seizure without a warrant.”

---

Actually, there is nothing in the Fourth Amendment or elsewhere in the Constitution that requires that a warrant be issued before a search or seizure takes place. The Framers didn’t want warrants to be issued; they placed restrictions on when warrants could be issued, because warrants allowed officers of the state to escape liability for their searches and seizures. But warrantless searches have always been permitted, so long as they are reasonable, and they occur every day.

[AuH2ORepublican]

Of course Hayden was condemned as an idiot: people actually think that he said that the Fourth Amendment does not mention the words “probable cause,” a statement that would make him not only stupid, but illiterate. But the headline does not describe what Hayden said, and probably was written by someone who didn’t understand Hayden’s argument.

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. Obviously Hayden should have explained that “probable cause” is the requirement for a warrant to be issued, not the requirement for a search or seizure, and that liberal judges illegitimately have been conflating those requirements for decades, but I assume that it was a brief interview and he couldn’t go on a long tangent about the original intent of the Framers and the abuses that the British authorities carried out against Americans due to the issuance of “general warrants” that gave British officers carte blanche to ransack through Americans’ houses and papers without fear of being sued for tresspass or damages.

Far from requiring warrants before any search or seizure, the Framers didn’t want warrants to be issued absent clear evidence; they placed restrictions on when warrants could be issued, because warrants allowed officers of the state to escape liability for their searches and seizures. But warrantless searches have always been permitted, so long as they are reasonable, and they occur every day.

I will reiterate that I am by no means saying that the NSA snooping is a “reasonable search.” But to assume that Michael Hayden doesn’t know how to read, as that headline writer did, is pretty silly. And for conservatives to accept as a given the misinterpretation of the Fourth Amendment by liberal judges is pretty sad.

[Ben Ficklin]

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.

With all due respect to you, we ain't breaking new ground here. This has been well churned up in the past and there is a lot of info available on this.

You might want to start at Wikipedia.

[xzins]

Hi Ben,

Nobody said new ground. What I did say dealt with the meaning of words. This article suggests that Hayden is a doofus, and I tend to agree.

I’ve pinged a lawyer and we’ll see if he responds and says the Executive Branch is permitted to override the obvious meaning of words in the US Constitution.

Hope you have a great day!

[Phlyer]

You won't get much sympathy here from people who are so sure that they know what the 4th Amendment says, but you're right.

The example that was used to explain this came up a while ago. After the DC Beltway sniper started shooting people, they would set up roadblocks and look in each vehicle as it went by. That was "reasonble" even though there were no warrants. A similar example was discussed on how teams of searchers might go onto private property after an 'Amber Alert' to look for lost children. That would also be "reasonable."

The warrant was just a pre-event opinion by a judge that the search was reasonable - making it fairly bulletproof from subsequent challenge. The Constitution establishes standards for the judge to use in issuing that opinion.

So, the question is whether the NSA snooping was "reasonable." Since that is inherently a judgment decision, whose judgment applies when it comes time to decide if a search is "reasonable?" The problem is that the statists think only their own "enlightened" judgment matters.

Clearly, "We, the People" don't all agree. As a general rule when seeking an assessment on judgment matters like this, the question should be settled in court with a jury of "We, the People" to assess the "reasonableness" of these searches. It won't happen that way, of course. Congress may provide another way to establish the consensus assessment on whether this was "reasonable" but I'm betting it will be arm-waved for a while and then move on.

[Jewbacca]

I am sure, however, that he can find the right to kill children and bothersome old people somewhere in the penumbra of the illuminations.

[Jeff Head]

This guy is clueless. He's an ignorant bully who will stick by his talking points even when proven to be wrong. A true Grueppenslieter for this traitorous Administartion.

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.

SNOWDEN, PRISM, AND THE NSA

"27 STATEMENTS BY SNOWDEN ON PRISM

The best expose on PRISM now comes from the 40 year career NSA employee, William Benny, who became the Director of Intelligence there under Geroge W. Bush. He has gone public since Snowden and detailed the full capabilities of PRISM and what the NSA was doing.

Former Director of NSA Intelligence reveals the full extent of PRISM capabilities. MUST SEE!

Another William Benny interview about PRISM and the NSA