Trashing the Constitution
First, he repeatedly asserted that the NSA program targeted communications "that we have reason to believe are Al-Qaeda communications" or "someone we believe is associated with Al-Qaeda" or something that "we have a reasonable basis to believe involved Al-Qaeda or one of its affiliates." A Knight-Ridder reporter honed in on these statements with a question relating to the 4th Amendment of the United States Constitution. He asked if the NSA didn’t have to have "probable cause" to justify such wiretapping, to determine who, in fact, should be wiretapped.
Here is where General Hayden revealed the true core of the government’s liability and ignorance. He said that there was no requirement in the 4th Amendment to conform to "probable cause" but only that the search had to be "reasonable." It could not constitute an "unreasonable search and seizure," he said. The reporter persisted about probable cause and again General Hayden insisted that the only requirement in the Constitution was the government's "reasonable belief" that the communication involved Al-Qaeda.
Here, unknowingly, the then head of NSA provided the real smoking guns regarding the government's motives. The first is ignorance. We have the highest ranking officer in the National Security Agency, someone who had, throughout his remarks, assured his audience that the NSA officers making decisions about whom to spy on were "experts and lawyers who know the law better than anyone" and he is ignorant of the most fundamental legal constraint in the Constitution! That provision is contained in the 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.And it guarantees that no American’s person or property can be violated, cannot be searched or seized, except for probable cause. That is, before a judge will give a warrant legal authority to police officers to search an American’s person or property, that judge must be given probable cause to believe that a crime has been committed. This amendment was written and adopted to prevent dictators or kings or secret police from simply entering a person's premises because they "think" or "believe" or "say" that the person is guilty of something. They must be able to convince a judge that "probable cause" of a crime exists before they can search and/or arrest that person.
With his breathtaking remark, General Hayden not only displayed his ignorance of the Constitution, he also displayed the ignorance and, equally, the arrogance of the Bush administration, which clearly believes that the President and the entire Executive Branch need only conform to part of the 4th Amendment. It need only assert to itself that a search is "reasonable," or that it has a "reasonable belief" that an American is somehow related to terrorism, to justify its searches, in this case its spying on his communications.
It does not have to supply "probable cause" to convince a judge, in this case a judge of the FISA Court, that its proposed spying is reasonable or necessary. It does not have to convince anyone of anything. It simply has to assert its "reasonable belief" that someone is somehow connected to terrorism (it does not have to say how) in order to spy on any American.
This is the definition of a king, of a tyrant, of a dictator. The dictator simply says: "I know what is right. I know what the country needs to be safe. I know whom to suspect and whom to arrest and whom to torture and whom to keep jailed for as long as I determine it is necessary. And no one, not the Congress, not the Courts, not the people, not anyone can challenge my judgment."
America’s founding fathers so often publicly venerated by this administration and its apologists wrote a Constitution expressly to prevent such a dictator (in this case the King of England) from ever again oppressing a people with actions based on his orders alone.
The 4th Amendment is a bedrock of that Constitution, a bedrock of the system of "laws not men" that they devised. This administration must not be allowed to get away with the trashing of that system of laws, for if they do, we shall be once again at the mercy of a tyrannical government ruled by men and not laws, men both ignorant and contemptuous of that founding document which the President in private has called "a goddam piece of paper."