Probable Cause for Alarm

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Fri, 27 Jan 2006 13:47:52 -0500 (EST)

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Probable Cause for Alarm

 

 

 

http://www.fair.org/index.php?page=2808

 

 

 

Media Advisory

 

Probable Cause for Alarm

Press ignores Ex-NSA chief's ignorance of Constitution

 

1/27/06

 

When FEMA Director Michael Brown claimed not to be aware of the

evacuee crisis at the New Orleans Convention Center following

Hurricane Katrina (NPR, 9/1/05), many journalists expressed

astonishment that a high-ranking official could be so uninformed about

a crucial aspect of his job (e.g., Nightline, 9/1/05). But when Gen.

Michael Hayden, principal deputy director of National Intelligence and

former director of the National Security Agency, displayed an equally

astounding lack of knowledge about a matter just as basic to his job,

media as a whole let it pass without comment.

 

The subject in question was the constitutional protections the

American public has against government spying--surely a vital thing to

understand for the former head of the nation's top surveillance

agency, and the person currently in charge of " overseeing the

day-to-day activities of the national intelligence program, " as his

Air Force bio states. Those protections are specified in the Fourth

Amendment to the Constitution, which reads in full:

 

" 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. "

 

Surely it's not too much to ask that the officials who are entrusted

with the ability to spy on virtually any electronic communication have

an appreciation of how this amendment limits that ability. Yet in a

question-and-answer session at the National Press Club in Washington,

D.C. on January 23--before an audience consisting largely of

journalists--Hayden repeatedly demonstrated that he does not know the

basic language of this key part of the Bill of Rights.

 

The subject came up when reporter Jonathan Landay of Knight Ridder

attempted to preface a question by stating 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. " Hayden interjected: " Actually, the

Fourth Amendment actually protects all of us against unreasonable

search and seizure. That's what it says. "

 

Landay politely corrected him, saying, " But the measure is 'probable

cause,' I believe. " But Hayden insisted: " The amendment says

'unreasonable search and seizure.' " When Landay continued, " But does

it not say probable-- " he was interrupted by Hayden, who said, " No....

The amendment says 'unreasonable search and seizure.' "

 

Landay went on to ask his question, which was whether the NSA, by

bypassing the special court mandated by the Foreign Intelligence

Surveillance Act, had " crafted a detour around the FISA court by

creating a new standard of 'reasonably believe' in place of 'probable

cause.' " Hayden's response returned to the issue of the Fourth Amendment:

 

" I didn't craft the authorization. I am responding to a lawful order,

alright? The attorney general has averred to the lawfulness of the

order. Just to be very clear, okay--and, believe me, if there's any

amendment to the Constitution that employees at the National Security

Agency is familiar with, it's the Fourth, alright? And it is a

reasonableness standard in the Fourth Amendment. So, what you've

raised to me--and I'm not a lawyer, and don't want to become one--but

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're lawful because

what it is we're doing is reasonable. "

 

By showing that he was unaware of the " probable cause " language in the

Fourth Amendment, Hayden revealed that his insistence that it was

legal for the NSA to conduct warrantless surveillance was not based on

even a nodding familiarity with the constitutional issues involved.

Given that Hayden's talk was part of a coordinated Bush administration

publicity campaign to stress the legality of such surveillance, his

demonstration of ignorance should have been a central point in the

subsequent coverage. Instead, most news outlets that covered his

speech chose to ignore his exchange with Landay and the knowledge gap

it revealed.

 

The Philadelphia Inquirer, the flagship of the Knight Ridder chain

that employs Landay, did publish a transcript of his exchange with

Hayden (1/24/06)--though even the Inquirer does not seem to have had a

story pointing out the significance of a high-ranking intelligence

official not knowing that the Fourth Amendment contains a " probable

cause " requirement.

 

Editor & Publisher, a website that covers journalism issues, carried a

story on January 23 with the headline, " Defending Spy Program, General

Reveals Shaky Grip on Fourth Amendment. " The story reported that

Hayden " appeared to be unfamiliar with the Fourth Amendment to the

U.S. Constitution when pressed by a reporter with Knight Ridder's

Washington office--despite his claims that he was actually something

of an expert on it. "

 

On MSNBC's Countdown (1/24/06), host Keith Olbermann played video of

the exchange, followed by a reading of the Fourth Amendment. " It's

hard to tell which is more frightening for those of you in favor of

continuing the democracy, the mistake itself, or the general's

insistence that it was not a mistake, " Olbermann commented. " Well,

maybe they have a different Constitution over there at the NSA. "

 

Most outlets, however, ignored Hayden's inaccurate claims about the

Fourth Amendment--even while covering other aspects of his talk. The

New York Times (1/24/06) quoted Hayden, from his National Press Club

speech, asserting that the NSA is well-versed in what the law allows

in terms of spying:

 

" 'I'm disappointed, I guess, that perhaps the default response for

some is to assume the worst,' General Hayden said. 'I'm trying to

communicate to you that the people who are doing this, OK, go shopping

in Glen Burnie and their kids play soccer in Laurel,' he added,

referring to suburbs near NSA headquarters in Maryland. 'And they know

the law,' he continued. 'They know American privacy better than the

average American, and they're dedicated to it.' "

 

The clear evidence from the same speech that the former NSA head does

not, in fact, " know the law, " was not included in the story.

 

The Associated Press (1/24/06) actually quoted from Hayden's exchange

with Landay without pointing out that the constitutional assertion

that he was making was patently false:

 

" Under the Foreign Intelligence Surveillance Act, government officials

had to prove to a secretive intelligence court that there was

'probable cause' to believe that a person was tied to terrorism.

Bush's program allows senior NSA officials to approve surveillance

when there was 'reason to believe' the call may involve al-Qaeda and

its affiliates. Hayden maintained that the work was within the law.

'The constitutional standard is reasonable.... I am convinced that we

are lawful because what it is we are doing is reasonable,'he said at

the National Press Club. "

 

By attributing the phrase " probable cause " to congressional

legislation, and then allowing Hayden, without rebuttal, to claim that

the Constitution offered a different standard, the AP accomplished

nothing except misinforming its readers.

 

The First Amendment to the Constitution extends special protection to

the press because the framers believed that an unfettered press would

help to protect the other rights that the Constitution guaranteed. The

lackadaisical media response to the revelation that a high-ranking

government official doesn't even understand what those rights are can

only make one worry that the framers' trust was misplaced.

 

 

 

 

 

 

 

For many years Tom Tomorrow's cartoons have taken aim at the

absurdities of our political system and the corporate media. For only

$15, you can order " The Wrath of Sparky, " " Penguin Soup for the Soul, "

and " When Penguins Attack. "

 

 

 

 

CounterSpin

Jordan Flaherty on Katrina reconstruction, Eric Boehlert on the K

Street Project (1/27/06-2/2/06)

 

Podcast

 

 

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