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Michael Hayden: Warrantless Surveillance and Operation Trailblazer

By Jeralyn, Section Other Politics
Posted on Sun May 07, 2006 at 12:24:25 PM EST
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LNILR wrote yesterday of Michael Hayden's lack of understanding of the Fourth Amendment.

I agree. I have previously written about his role in the failed Operation Trailblazer program and his endorsement of Bush's warrantless NSA electronic surviellance program. Hayden was in charge of the NSA when Bush's program went into effect and was called upon by Bush to be a spokesman supporting it.

"General Hayden defended the program's constitutionality. He said the lower, "reasonable belief" standard conformed to the wording of the Fourth Amendment, pointing out that it does not mention probable cause, but instead forbids "unreasonable" searches and seizures."

The last time I read the Fourth Amendment it said:

"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 Washington Post says there will be a battle over Hayden's nomination. More over at Crooks and Liars, Firedoglake and Left Coaster.

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    • Michael Hayden: Warrantless Surveillance and Operation Trailblazer | 35 comments (35 topical)
    Re: Michael Hayden: Warrantless Surveillance and (none / 0) (#1)
    by Dadler on Sun May 07, 2006 at 12:47:26 PM EST
    A battle? How about a complete annihilation of his nomination? The guy is a lackey. Lack. Key. That is he should forever lack the key to this office.

    Re: Michael Hayden: Warrantless Surveillance and (none / 0) (#2)
    by scribe on Sun May 07, 2006 at 01:31:50 PM EST
    Apparently, Hoekstra has come out against. Not that he has a vote on it, though.

    Re: Michael Hayden: Warrantless Surveillance and (none / 0) (#3)
    by Bob In Pacifica on Sun May 07, 2006 at 02:54:28 PM EST
    Nominated for what? The Grand Inquisitor?

    Re: Michael Hayden: Warrantless Surveillance and (none / 0) (#4)
    by Talkleft Visitor on Sun May 07, 2006 at 02:55:03 PM EST
    scary looking guy isn't he? he also has stated clearly that he fully supports all the wire tapping bush has done.. and assures us that none of it has been done in malice.. someone tell this dude we already have proof of the peace groups being tapped.. no wonder bush picked him. this guy will protect bush under ALLLLLL instances on anything he does :(

    Re: Michael Hayden: Warrantless Surveillance and (none / 0) (#5)
    by orionATL on Sun May 07, 2006 at 04:22:06 PM EST
    with respect to gen hayden as possible head of the cia. commenter "sara" has a brief, thoughtful comment (dated may 7, 1:29) about the leadership hayden exercised at the nsa when he was sent there to help nsa reorganize and regroup on the way to being a more effective organization. yeah, i know. who wants the nsa, or the cia, to be more effective? but, of course, we all should -- in appropriate ways that protect our privacy. this commenter has a fine historical memory which is very useful when judging these matters. the post in which sara's comment appears is by emptywheel, is entitled "what if it's not the hookers", and is dated may 5.

    Re: Michael Hayden: Warrantless Surveillance and (none / 0) (#6)
    by Talkleft Visitor on Sun May 07, 2006 at 05:57:39 PM EST
    orionATL, you gave no link or reference, but I believe you are referring to this post in The Next Hurrah.

    Re: Michael Hayden: Warrantless Surveillance and (none / 0) (#7)
    by Talkleft Visitor on Sun May 07, 2006 at 06:20:28 PM EST
    orionATL, I see from the timestamp you quoted that you meant this post in the same thread.

    Re: Michael Hayden: Warrantless Surveillance and (none / 0) (#8)
    by Talkleft Visitor on Sun May 07, 2006 at 07:07:32 PM EST
    A thought on Hayden's understanding of the fourth amendment - I know nothing about Hayden, but I'm fairly certain he's not a lawyer. With that said, his understanding of how the fourth amendment applies to the activities of the NSA should come from the NSA's legal department or the justice department. My strong suspicion is that the issue was carefully analyzed by government lawyers who then reported to Hayden and other administration officials. Their conclusion was likely that the wiretapping falls into a legal grey area, with a certain amount of precedent supporting both positions. Given the conservative bent of the supreme court, they likely concluded that the wiretapping would be upheld if challenged. (I haven't looked at the issue in depth, but if I were writing an objective memo for the ACLU on their odds of success in pursuing a lawsuit I wouldn't be surprised at all if that was my conclusion too.) One would also expect these lawyers to lay out the counter arguments so that the policy makers could make an informed choice on whether to go forward. There's no question that an advocate challenging the wiretapping can make a strong case that it's illegal. But just becasue you present a strong case, it doesn't mean that a court will agree with you (For instance, even though I support abortion rights and legalized abortion is that law of the land, the constitutional case for states being able to ban it is really strong. That's the reason why roe v wade is in constant danger of being overturned. But the strong case of abortion opponents hasn't caused the law to be overturned yet. It will take a change in justices to make that happen.) I'd be much more concerned if Hayden professed an understanding of the Fourth amendment that would cause him to ignore the advice/conclusions of government attorneys.

    Re: Michael Hayden: Warrantless Surveillance and (none / 0) (#9)
    by Sailor on Sun May 07, 2006 at 08:12:12 PM EST
    I'd be much more concerned if Hayden professed an understanding of the Fourth amendment that would cause him to ignore the advice/conclusions of government attorneys
    bluesclueless: please provide links for your fantasy. BTW, I think fearful leader made a slight miscalculation:
    OFFICE OF THE DIRECTOR OF CENTRAL INTELLIGENCE
    SEC. 102. [50 U.S.C. 403] (a) DIRECTOR of CENTRAL INTELLIGENCE. - There is a Director of Central Intelligence who shall be appointed by the President, by and with the advice and consent of the Senate. The Director shall - [...] (c) MILITARY STATUS OF DIRECTOR AND DEPUTY DIRECTORS. -(1)(A) Not more than one of the individuals serving in the positions specified in subparagraph (B) may be a commissioned officer of the Armed Forces, whether in active or retired status.
    And who is the deputy director?
    The Deputy Director of the Central Intelligence Agency is Vice Admiral Albert M. Calland III, USN.
    Re: Michael Hayden: Warrantless Surveillance and (none / 0) (#10)
    by Talkleft Visitor on Sun May 07, 2006 at 08:44:52 PM EST
    I'd be much more concerned if Hayden professed an understanding of the Fourth amendment that would cause him to ignore the advice/conclusions of government attorneys bluesclueless: please provide links for your fantasy.
    I don't have any links. The original post is about how Hayden doesn't understand the fourth amendment. My point was that a military general with no legal training or credentials shouldn't be performing legal analysis on how the fourth amendment applies to a proposed search program. That's a question for the government's lawyers. And it's the lawyers' job to give the policy makers an objective analysis that will let them make an informed decision. And in making that informed decision, the policy makers shouldn't say, "well that's not how I understand the 4th amendment." Do you see what I'm getting at? I just don't think that Hayden's understanding of the fourth amendment is material, unless he feels so strongly about his understanding that he's ignoring the lawyers' analysis in favor of his own.

    Re: Michael Hayden: Warrantless Surveillance and (none / 0) (#11)
    by squeaky on Sun May 07, 2006 at 09:09:06 PM EST
    hueOb-Lawyers smoyers, we know what abu gonzo and torture yoo have to say. This is not about interpretation of the finer points of constitutional law, this is about castrating the fourth amendment. He refused to acknowledge that the words "probable cause" even existed. Chop snip, the fourth amendment has no balls, reduced to NSA wallpaper.

    Re: Michael Hayden: Warrantless Surveillance and (none / 0) (#12)
    by Talkleft Visitor on Sun May 07, 2006 at 09:36:23 PM EST
    Squeaky
    This is not about interpretation of the finer points of constitutional law, this is about castrating the fourth amendment. He refused to acknowledge that the words "probable cause" even existed. Chop snip, the fourth amendment has no balls, reduced to NSA wallpaper.
    It is about interpreting the 4th amendment, and I think you're interpreting it wrong. Probable cause is the standard for issuing a warrant. A search warrant is not constitutional unless there is probable cause to issue it. But a search warrant is only neccessary if the government seeks to carry out an "unreasonable" search or siezure. Our courts generally define this this as a government invasion of a sphere in which an individual has a "reasonable expectation of privacy." For example, if you're smoking a bong on a public street, you don't have a reasonable expectation of privacy and the cops can seize it without a warrant. But if you're smoking the bong in your home (you almost always have a protected privacy interest in your home) the cops would need to get a warrant, and they would have to show probable cause to get one (i.e., they can smell pot smoke coming out of your window). The full analysis is actually more complicated, but that's the general idea.

    Re: Michael Hayden: Warrantless Surveillance and (none / 0) (#13)
    by squeaky on Sun May 07, 2006 at 09:55:34 PM EST
    hueblue-The thread is about the general's failure to acknowledge probable cause, and his contempt for any privacy for american citizens at all. The concern here is about privacy in the traditionally protected environment of one's home. Your somewhat patronizing comments about it being more complex than that is irrelevant for the sake of this thread. I am sure you can discuss the complexities too difficult for us on the left to understand at your favorite wingnut sites. They will eat it up.

    Re: Michael Hayden: Warrantless Surveillance and (none / 0) (#15)
    by Talkleft Visitor on Sun May 07, 2006 at 10:54:05 PM EST
    Squeaky, ease up on the name calling and insults to huesofblue. S/he appears to be a new commenter and regardless of whether you agree, there's no need to mock him or her. The views expressed in the comments were sincere and well thought out. Huesofblue, welcome.

    Re: Michael Hayden: Warrantless Surveillance and (none / 0) (#14)
    by Talkleft Visitor on Sun May 07, 2006 at 10:56:37 PM EST
    Squeaky I'm not your enemy. I was the vice president of the ACLU at my law school. I'm just trying to get across that there's a lot more to the 4th amendment issues here than people seem to be aknowledging on this thread. I mentioned that the analysis was a lot more complicated, because I don't know it off the top of my head. A couple years ago I once edited an article by a 4th amendment professor about the erosion of the right in U.S. courts. I don't remeber all the details, but I do remeber that 4th amendment law is in a pretty f**ked up state. And in that state, the general, who isn't a lawyer, isn't that far off base in his comments. I don't think I'm saying anything here that makes me a nut job.

    Re: Michael Hayden: Warrantless Surveillance and (none / 0) (#16)
    by Talkleft Visitor on Sun May 07, 2006 at 11:09:48 PM EST
    Thanks for the kind words TalkLeft. I've really been enjoying your site.

    Re: Michael Hayden: Warrantless Surveillance and (none / 0) (#17)
    by orionATL on Mon May 08, 2006 at 09:39:10 AM EST
    cymro: yes and yes. and thanks for providing the links. i have not yet figured out how to make those little blue lines that are so valuable to readers. talk left: no offense intended to commenters but it is very helpful when a site "admin" person makes a gentle comment about site expectations. it helps keep the discussion more focused on debate and helps keep things from spinning out of control in tedious animosity between a few commenters as happens far too often in weblogs. or in leaving some commenters feeling like they don't "belong" here.

    Re: Michael Hayden: Warrantless Surveillance and (none / 0) (#18)
    by Talkleft Visitor on Mon May 08, 2006 at 10:17:40 AM EST
    Huesofblue - You do seem to have knowledge of the Fourth Amendment, so I'm not sure why you are implying that probable cause is only required to get a warrant. Aside from issues involving standing (and you would have standing to challenge a wiretap of your phone or the reading of your e-mails) there is actually a HIGHER standard for warrantless searches, which are considered per se unreasonable unless they fall within certain enumerated exceptions, such as exigent circumstances. See United States v. Perea, 986 F.2d 633, 639 (2nd Cir. 1993)(and lots of other cases)

    Re: Michael Hayden: Warrantless Surveillance and (none / 0) (#19)
    by Talkleft Visitor on Mon May 08, 2006 at 10:38:29 AM EST
    Sailor, Nice catch! Now, if there was only a way to ensure that Bushco actually obeyed the law. I know, I know, pipe dreams.

    Re: Michael Hayden: Warrantless Surveillance and (none / 0) (#20)
    by Talkleft Visitor on Mon May 08, 2006 at 11:28:00 AM EST
    Huesofblue - the problem (from where I stand) is that, assuming the Times article is accurate, Hayden explictly claimed that the Fourth Amendment does not mention the words "probable cause." That's just mind-boggling.

    Re: Michael Hayden: Warrantless Surveillance and (none / 0) (#21)
    by Talkleft Visitor on Mon May 08, 2006 at 11:33:00 AM EST
    Gablin
    there is actually a HIGHER standard for warrantless searches, which are considered per se unreasonable unless they fall within certain enumerated exceptions, such as exigent circumstances. See United States v. Perea, 986 F.2d 633, 639 (2nd Cir. 1993)(and lots of other cases)
    I know what you're talking about. I was trying to avoid the fact that there are a bunch of different standards for warrantless searches because I thought it would confuse my main point - which is that 4th amendment analysis is almost always two pronged. The first prong is whether the fourth amendment applies. And there, the standard is all about reasonableness. Probable cause, reasonable belief, ect. has nothing to do with it. I originally thought that was what Hayden was what talking about - and I think an argument can be made there for incoming calls from certain foreign states (there's no expectation of privacy in calls you recieve from a prisoner, because prisoners don't have a reaonable expectation of privacy in their calls. You could argue that the privacy expectations in a call from Syria or Iran are the same.) But after finally reading what Hayden said, I'm pretty sure he was talking about something different. Assuming the wiretapping plan doesn't require a warrant, the issue is the standard for initiating the search. Hayden is technically correct in saying the standard is reasonableness and not probable cause (and that's probably why he was so adamant in saying that he thought reasonable belief satisfied this requirement). But you're correct in noting that courts have genrally held that reasonable >= probable cause, unless an exception applies (you mentioned exigent circumstances). I think exigent circumstances are at the heart of the government's argument that it doesn't need a warrant. I think they're trying to take it a step further to argue that reasonable belief is enough to initiate in these circumstances. Whether this is a plausible argument is going to depend a lot on how the program works. If the NSA decided to monitor all of a U.S. citizens calls without a warrant on just a showing of reasonable belief, I don't think that's enough. If they just monitor calls to and from certain countries it might be a little stronger. I think you made really good points though.

    Re: Michael Hayden: Warrantless Surveillance and (none / 0) (#22)
    by squeaky on Mon May 08, 2006 at 11:33:01 AM EST
    Sorry hue for getting snippy. I do not understand the complexity that you are addressing. I expect privacy in my home and am unhappy that there is a team of government lawyers working to undo the simplicity of the words "probable cause". Judging from your comment on the other thread you seem concerned as well.
    My point was that a military general with no legal training or credentials shouldn't be performing legal analysis on how the fourth amendment applies to a proposed search program. That's a question for the government's lawyers. And it's the lawyers' job to give the policy makers an objective analysis that will let them make an informed decision.
    It particularly irritates me that you seem to be advocating for the government lawyers who are told by people like Hayden to figure out a way to legally circumvent constitutional protections that are the jewels of America. We have seen how these government lawyers can interpret law so that torture is OK. For me those guys are the lowest of the low. I just do not get how anyone but a staunch supporter of the current administration would give them any credibility.

    Re: Michael Hayden: Warrantless Surveillance and (none / 0) (#23)
    by Talkleft Visitor on Mon May 08, 2006 at 11:47:25 AM EST
    I don't want the discussion of warrantless searches to confuse the issue. Even aside from the Fourth Amendment, of course they still would need a FISA warrant - from a FISA judge - it seems pretty clear to me that they (NSA officials, including Hayden) are guilty of felonies for wiretapping without getting FISA approval. FISA clearly applies to this situation - that's why Congress passed it - to deal with the "grey zone" involving foreign surveillance. Actually, I think it's not just "foreign" surveillance and not just surveillance - there have been physical searches too and who knows what else. I think we have only seen the tip of the iceberg. These people are determined to utterly eviscerate the Constitution and I would not give them the slightest bit of support, or give them the benefit of any doubt. We need to do whatever we can to stop them, while we still can...

    Re: Michael Hayden: Warrantless Surveillance and (none / 0) (#24)
    by Talkleft Visitor on Mon May 08, 2006 at 11:50:31 AM EST
    Squeaky
    We have seen how these government lawyers can interpret law so that torture is OK. For me those guys are the lowest of the low. I just do not get how anyone but a staunch supporter of the current administration would give them any credibility
    The tourture memo is tricky. The government set up an elaborate system to exploit certain loopholes in international law. If you're just trying to objectively evaluate the legality of that system, I think most people would conclude that there are decent legal arguments on both sides and that a court could go either way. So if the issue is whether the administration can legally justify their position, I think they can. And I think it was their lawyer's job and ethical duty to tell them that. That doesn't make it moral and it doesn't mean that's the way a court should interpret it.
    I expect privacy in my home and am unhappy that there is a team of government lawyers working to undo the simplicity of the words "probable cause".
    Agreed. My problem is that probable cause is a really low standard, and it's not exactly hard to get a warrant. There's no good reason why they shouldn't be doing this inside of the established legal frame work.

    Re: Michael Hayden: Warrantless Surveillance and (none / 0) (#25)
    by squeaky on Mon May 08, 2006 at 12:06:31 PM EST
    hue-
    The torture memo is tricky. The government set up an elaborate system to exploit certain loopholes in international law. If you're just trying to objectively evaluate the legality of that system, I think most people would conclude that there are decent legal arguments on both sides and that a court could go either way.
    Going by your definition I am unlike most people and am quite happy to part company with any who find torture legally ok. If you are correct, which I find hard to believe, I feel sorry for those who could have any objectivity when it comes to condoning the legality of torture.

    Re: Michael Hayden: Warrantless Surveillance and (none / 0) (#26)
    by Talkleft Visitor on Mon May 08, 2006 at 12:32:25 PM EST
    Going by your definition I am unlike most people and am quite happy to part company with any who find torture legally ok.
    That's fine. I just think that morally right and legally permissible are two different things. War is immoral, but if all the right hoops are jumped through, it's legal. I wouldn't want to be the lawyer helping them jump through those hoops and I think a moral choice would be not to work on those memos. I just don't think it makes sense to pretend like the administration doesn't understand the law. I think they probably understand it really well, and that's why they've been so effective at getting around its intent.

    Re: Michael Hayden: Warrantless Surveillance and (none / 0) (#27)
    by Sailor on Mon May 08, 2006 at 12:40:51 PM EST
    I just don't think it makes sense to pretend like the administration doesn't understand the law. I think they probably understand it really well, and that's why they've been so effective at getting around its intent.
    No, it's because they basically rule all 3 branches of gov't and no one is willing to challenge them.

    Re: Michael Hayden: Warrantless Surveillance and (none / 0) (#28)
    by squeaky on Mon May 08, 2006 at 12:49:24 PM EST
    hue-
    I just don't think it makes sense to pretend like the administration doesn't understand the law.
    Who's pretending here? You started off by saying that the General did not understand the law. It is not about understanding it is about interpertation and stacking the courts.

    Re: Michael Hayden: Warrantless Surveillance and (none / 0) (#29)
    by squeaky on Mon May 08, 2006 at 02:56:33 PM EST
    Here is what General Hayden tells us:
    I'm disappointed I guess that perhaps the default response for some is to assume the worst. I'm trying to communicate to you that the people who are doing this, okay, go shopping in Glen Burnie and their kids play soccer in Laurel, and they know the law. They know American privacy better than the average American, and they're dedicated to it. So I guess the message I'd ask you to take back to your communities is the same one I take back to mine. This is focused. It's targeted. It's very carefully done. You shouldn't worry.
    Guess that they know the law and as hueofblue notes they know how to get around it. Don't worry, leave national security to the pros. You are in good hands, just trust us. Whatever they do it will be legal. Other american administrations and goverments have made the same claims and even if they were legally correct they were horribly wrong. From digby who warns:
    This is totalitarian pork we're talking about and there's probably no putting the piglet back in the pigpen.
    Re: Michael Hayden: Warrantless Surveillance and (none / 0) (#30)
    by Talkleft Visitor on Mon May 08, 2006 at 03:51:53 PM EST
    Guess that they know the law and as hueofblue notes they know how to get around it. Don't worry, leave national security to the pros. You are in good hands, just trust us. Whatever they do it will be legal. Other american administrations and goverments have made the same claims and even if they were legally correct they were horribly wrong.
    Squeaky, I've argued myself into a corner where I'm not comfortable. I got involved on this thread because I didn't like that it was criticizing the guy for not knowing the 4th amendment well enough. Two reasons 1) I don't think the general's understanding is entirely material, and 2) I'm not sure his understanding is totally wrong given the conservatives on the supreme court. With that said, this guy has a disturbing willingness to push the boundries of government intrusion and doesn't seem to have much respect for civil rights. His appointment is bad news.

    Re: Michael Hayden: Warrantless Surveillance and (none / 0) (#31)
    by squeaky on Mon May 08, 2006 at 03:58:05 PM EST
    hue-
    His appointment is bad news.
    Seems like the only ones who disagree with you are the WH and the DOD. Otherwise you have bipartisan support on this point.

    Re: Michael Hayden: Warrantless Surveillance and (none / 0) (#32)
    by jimakaPPJ on Mon May 08, 2006 at 05:30:01 PM EST
    huesofblue writes:
    Agreed. My problem is that probable cause is a really low standard, and it's not exactly hard to get a warrant. There's no good reason why they shouldn't be doing this inside of the established legal frame work.
    There is actually two issues at play here. The first is time. From the moment they have identified a hot number they want to monitor until the enemy knows it is comprimised is very limited. In some cases hours. The second issue is simply this. What if they ask and the Judge says no? What then? Not monitor the conversations of a known terrorist talking to someone in the US? Isn't that how we didn't find out about 9/11? Remember the harddrive that wasn't searched?

    Re: Michael Hayden: Warrantless Surveillance and (none / 0) (#34)
    by Che's Lounge on Mon May 08, 2006 at 08:33:49 PM EST
    From the moment they have identified a hot number they want to monitor until the enemy knows it is comprimised is very limited. In some cases hours. How do you know this?

    Re: Michael Hayden: Warrantless Surveillance and (none / 0) (#35)
    by Talkleft Visitor on Mon May 08, 2006 at 11:00:09 PM EST
    OrionATL, here's how you insert links (with blue underlines) on this site: 1. First type in the material you want in your post. 2. Then (in another browser/window) go to the site that you want your post to link to 3. Copy the url for that site into your clipboard (the key combination CTRL+C works in IE) 4. Return to Talkleft, and select (i.e. highlight) just the words that you want to link 5. Click on the URL button at the top of the "Comments" box 6. In the window that appears, paste in the URL that you have put on your clipboard (CTRL+V works in IE) 7. Hit enter, and your post will be updated to include the right HTML text for a link. 8. If you now preview your post you should see the link as it will look, with the nice blue underlining. 9. Repeat steps 2-9 if you have multiple links. Good luck, and let me know if you have problems.

    Re: Michael Hayden: Warrantless Surveillance and (none / 0) (#36)
    by Talkleft Visitor on Tue May 09, 2006 at 02:16:27 AM EST
    She knows it all it comes naturally, How's that so is a big mystery. So you watch out, For a personal clout. What's her name? now let me see.

    Michael Hayden: Warrantless Surveillance and Operation Trailblazer | 35 comments (35 topical)