Hayden's making up laws again: "Standard of Reasonableness"

[bigtree]

Hayden just told Sen. Feinstein that there is a "broader" standard in the 4th amendment than 'probable cause, ie: reasonableness.

That's an amazing example of this administration changing laws to fit their overreaching ambitions.

Hayden did this several times before this hearing. His, and the administration's, tortured interpretation of the 4th amendment goes to the heart of their justification for spying on Americans without a warrant. The FISA courts use the 'probable cause' standard in determining whether to approve wiretaps and surveillance of U.S. citizens. The Bush administration bypassed the courts and adopted this arguably lesser standard of 'reasonableness'.

I wrote on this a few weeks back:

Relying on 'Reasonable' Beliefs of Bush and Hayden (2006-05-09)

http://www.opednews.com/articles/opedne_ron_full_060509_the__reasonable__bel.htm

". . . we believe -- I am convinced that we are lawful because what it is we're doing is reasonable."-Gen. Michael Hayden before the National Press Club January 2006

The reasonable test. Reasonableness. That's the threshold test Bush and his lawyer Gonzales use to determine whether to spy on Americans. 'Reasonableness' is also the standard that Bush's nominee for the CIA, Gen. Hayden, has used to defend the warrant-less wiretapping and data-mining of U.S. citizens, in blatant disregard for the FISA law set in place by Sen. Kennedy and others in response to unwarranted surveillance in the '60's and the '70's.

Is the FISA law reasonable?

Reasonableness?

[Frustratedlady]

1. You'll find "reasonableness" listed under...

dudenesses, as in GW's "dudes and dudenesses" from the other day.

Birds of a feather, flock together.

[Marie26]

17. Or "truthiness" nt

[jean]

2. He's watching Colbert - that sounds too much like 'truthiness'

[EVDebs]

3. NSAspeak for CIAspeak "Plausible Deniability" over and out.

[don954]

4. the 4th amendment requires

a warrant to be issued on probable cause, not that probable cause automatically allows search. The warrant & all its due process is specified in no uncertain terms.

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.

[tabasco]

10. They simply ignore the parts of the Constitution they don't want.

They cherry pick the words they want. They are destroying our democracy.

[magellan]

5. And who decides what's 'reasonable'?

This, like everything the GOP manipulates for public approval, isn't about 'opinion'. It's about complying with the f***ing law.

[bigtree]

8. they decide . . .

QUESTION: The legal standard is probable cause, General. You used the terms just a few minutes ago, "We reasonably believe." And a FISA court, my understanding is, would not give you a warrant if you went before them and say "we reasonably believe"; you have to go to the FISA court, or the attorney general has to go to the FISA court and say, "we have probable cause."

And so what many people believe -- and I'd like you to respond to this -- is that what you've actually done is crafted a detour around the FISA court by creating a new standard of "reasonably believe" in place of probable cause because the FISA court will not give you a warrant based on reasonable belief, you have to show probable cause. Could you respond to that, please?

GEN. HAYDEN: Sure. 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.

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. And it is a reasonableness standard in the Fourth Amendment. And so what you've raised to me -- and I'm not a lawyer, and don't want to become one -- 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 are lawful because what it is we're doing is reasonable.

The 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."

[bigtree]

9. dupe

.

[WiseButAngrySara]

6. PLEASE someone explain to me HOW one can be REASONABLE

without PROBABLE CAUSE?

[Marie26]

16. You can't

It's impossible. They're just making up terms & pretending they have some relevance to the law, when they do not. Probable cause is the test to determine whether a search is "reasonable" or not.

[pinto]

7. Good catch. This is the loophole administration, their specialty.

Ignore the law, discount it, rewrite it, or "signing statement" it out of existence.

Ugh.

[Patsy Stone]

25. No it all depends on what the meaning of *is* is...

They like to find the one word they can jump on. In the 4th Amendment, "unreasonable" comes before "searches and seizures". Therefore, if they argue the word "unreasonable", in their mind, everything after that word becomes moot. :crazy:

[ThoughtCriminal]

11. Ask yourself if a reasonable man...

would steal a billion dollars if there was virtually no chance that he would get caught.

The criteria for law breaking is not "We could get away with this".

[Chomp]

12. kick

[Marie26]

13. He tried the

same damn thing in his press conference on the NSA wiretaps, back in January. How can this man be in charge of gathering information for the gov. when he doesn't even know the constitutional standard? It's PROBABLE CAUSE! Jeez, you'd think he'd know that by now. Here, I'll post the 4th Amendment here in case Hayden is tapping DU today.

"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."

Here's a good article & transcript of Hayden's earlier twisting of the Constitution:

Hayden, Likely Choice for CIA Chief, Displayed Shaky Grip on 4th Amendment at Press Club

"As the last journalist to get in a question at the Press Club, Jonathan Landay, a well-regarded investigative reporter for Knight Ridder, noted that Gen. Hayden repeatedly referred to the Fourth Amendment's search standard of "reasonableness" without mentioning that it also demands "probable cause." Hayden seemed to deny that the amendment included any such thing, or simply ignored it. He directly said "no" it did not include "probable cause."

This caused Landay to reply, "The legal standard is probable cause, General."

http://www.editorandpublisher.com/eandp/news/article_display.jsp?vnu_content_id=1002463957

[thecrow]

14. "Lawful" does not equal LEGAL

There. I've said it.

[bigtree]

15. legal-like?

(I said that)

[thecrow]

20. Not even close! They twist their words

and the sheeple hear what they want to hear:
The pResident is doing all this LEGALLY!

Arrgh.
:crazy:

[bigtree]

21. allowed is as good as legal

Congress needs to act, but, instead, they're angling to coronate the architect of the crime.

[ProfessorGAC]

18. Does He Thinks This Is A Civil Ordinance Case?

What an idiot! Those standards apply to the validity of police response to a complaint to an already existing ordinance. They don't apply to the establishment of police protocols or actions.

(Cite: Mann & Roberts)

He is NOT the right guy for this job. He's been in the military too long. He thinks the citizens should just take orders.
The Professor

[bigtree]

19. that's a good take, very relevant

UPALaw- APPLYING THE NORM OF CONTROLLING POLICE DISCRETION


What is a “Search” Under the Reasonableness Model?

{snips}

A reasonableness model is used not only to decide whether a particular police intrusion violates the Fourth Amendment, but also to decide the threshold question of whether police activity triggers Fourth Amendment scrutiny ab initio. Police activity that is not deemed a “search” under the Amendment need not be exercised in a “reasonable” manner; intrusions falling into the “non-search” category “may be as unreasonable as the police please to make them.”

In determining whether a police intrusion is a search, the Court decides whether the person challenging the police activity had a “reasonable expectation of privacy” in the targeted area. This formula comes from Justice Harlan’s concurring opinion in the landmark case of Katz v. United States.123 The Katz test consists of a two-part inquiry: first, did the person have a subjective expectation of privacy in the area targeted by the police? Second, was this an expectation that society considers reasonable? The Katz test has been applied in a variety of circumstances.


. . . if controlling discretionary police power were the principal consideration when defining the scope of the Fourth Amendment, the police would be greatly inhibited in the types of investigative activities they could undertake without prior justification or judicial approval. But controlling the discretion of law enforcement officers has other benefits in addition to eliminating arbitrary intrusions into our personal security and privacy. If the FBI were required to secure a judicial warrant before infiltrating our homes or businesses with undercover informants, there might be fewer undercover searches. Those searches that are approved, however, will likely be “better quality searches” because FBI agents will be permitted to search only when they have good reason.

But the Court has been unwilling to interpret the Fourth Amendment’s scope in a manner designed to restrict discretionary police intrusions. Instead, the Court has turned to the “reasonable expectation of privacy” model of the Katz test. As currently applied, the Katz test not only fails to control discretionary intrusions, it also lacks content and substance. Under the best circumstances, the Katz test is prone to circular reasoning. At its worst, Katz’s “reasonable expectation of privacy” framework is a malleable formula. The Court’s precedents are not built upon objective legal principles; rather, the Court’s rulings simply reflect the current sentiments of a majority of the Justices deciding whether a particular police investigative practice is reasonable under the circumstances. Lately, a few members of the Court themselves have acknowledged the emptiness of the Katz test. Last Term, Justice Scalia, in a concurring opinion that Justice Thomas joined, described the Katz formula as a “notoriously unhelpful” and “self-indulgent” test. In Justice Scalia’s view, the Katz test means what a majority of the Court says it means, no more and no less. The Court’s two most recent cases in this area, Minnesota v. Carter and Bond v. United States, reveal the accuracy of Justice Scalia’s comments and indicate why controlling police discretion is a superior legal norm for measuring the scope of the Fourth Amendment.

complete analysis with footnotes: http://www.law.upenn.edu/conlaw/issues/vol3/num1/maclin/node4.html

[ProfessorGAC]

23. That's A Good Find

Thanks
The Professor

[Marr]

22. Did Feinstein call him on this?

[bigtree]

24. she said something like she would have a debate with him about it

in her follow up rounds

[unblock]

26. the 4th amendment only protects you from UNREASONABLE searches & seizures

it is silent about REASONABLE searches & seizures.

at least, that's the fascist argument that's being made....

[bigtree]

27. the difference here is that the Courts were to decide, not the Executive

[unblock]

28. true. but shrub probably figures he owns the courts anyway....

[Marie26]

31. ludicrous argument. nt

[mcscajun]

29. MOM! They're cherry-picking clauses again!

"against unreasonable searches and seizures"

So, as long as BushCo's merry minions decide a search or seizure is reasonable, they get to ignore probable cause.

"It's all those Other administrations that engaged in UNreasonable searches and seizures -- Ours are all quite reasonable. No laws may apply." -- Chimpy and Hayden Say So.

[bigtree]

30. not even the language is safe from these morans

[mcscajun]

33. Nope. They studied semantics, context and syntax under Humpty Dumpty.

"When I use a word," Humpty Dumpty said, in a rather scornful tone, "it means just what I choose it to mean, neither more nor less."
"The question is," said Alice, "whether you can make words mean so many different things."
"The question is," said Humpty Dumpty, "which is to be master - that's all."

from "Through The Looking Glass"
by Lewis Carroll

We're all through the Looking Glass these days, and it's pretty clear that they've decided to be master...that's all.

[Raksha]

32. Too damn subjective.

"Reasonableness" is in the eye of the beholder.

[jazzjunkysue]

34. So's "Stratergy."

"Too many obgyn's can't practice their love with their patients."

[Jack Rabbit]

35. Let me acquaint General Hayden with the Fourth Amendment

It appears he hasn't read it.

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.

(Emphasis added).

Translation: if the government wants to listen to a private citizen's telephone conversations, it needs a warrant based on probable cause that said citizen might be doing something wrong. Otherwise, if no reason for the search is given, it is unreasonable by definition.

Specially, if the government thinks somebody is talking to an al Qaida operative, the government can present their reasons for thinking so to a judge and get a warrant and listen to the conversation. That's how it's done.

There is something unreasonable about the government going on a fishing expedition and listening to anybody and everybody's phone conversations just to see who is talking to al Qaida.

If General Hayden doesn't understand that, he shouldn't be DCI or in any other position of responsibility.

[katty]

36. sounds like Tom Cruise makin' it up as i go along spin

[leftofthedial]

37. if one considers the outrageous excesses and crimes

this gang of degenerate thugs think are "reasonable," one begins to understand that they reject any constitutional guideline.

[bigtree]

38. Their extremism can be accurately measured by the level of compliance

and complicity of those we've elected to hold them accountable

[Canuckistanian]

39. Next, it'll be "Standard of Whatever We Feel Like"

And we have another memo from Gonazales to justify it.

[bigtree]

40. want to add this from The Brad Blog

Guest blogged by David Edwards of Veredictum.com

VIDEO - Ray McGovern: Hayden Unfit for CIA -- Violated Constitution, FISA (http://www.bradblog.com/archives/00002845.htm)

CNN's Lou Dobbs interviews former CIA Analyst Ray McGovern on Lt. General Hayden's nomination to be CIA Director. McGovern insist that Hayden's circumvented the FISA law and the U.S. Constitution when he followed Bush's order to listen to domestic phone calls without a warrant.

In the past, Hayden has shown to be a person who strictly followed the rule that the NSA and the CIA do no spy on Americans. Hayden has been known to push back against orders that breech the threshold of domestic spying. Since September 11th, Hayden gave way to Administration pressure to do domestic spying.

Hayden eventually created and defended the most publicly known program of warrantless domestic eavesdropping. In this case, one end of the call originates in the U.S. and the other end of the call is a foreign location. The FISA law and the Fourth Amendment require a warrant to listen to any domestic source (regardless of who is on the other end of the call.)


From the CNN transcript: (http://transcripts.cnn.com/TRANSCRIPTS/0605/17/ldt.01.html)

MCGOVERN: Yes, well, I don't think he's qualified because he made one big error. He -- like me when I was an Army office officer, like Bobby when he was an admiral, we took an oath to protect and defend the constitution of the United States. That means we were sworn to protect the law, and also we were taught that we were never able or willing or we should never -- we should never obey an illegal order, OK?

Now, General Hayden was -- had a terrific reputation at NSA. Largely because he focused on what they call the 11th commandment up there, thou shalt not eavesdrop on Americans. After 9/11, as we all know, everything changed. We have a new paradigm, as they say, not the U.S. constitution...
<..>
Now the paradigm now is when the president or the vice president says we have to do something and it's sort of not really according to the law, we go ahead and do it anyway. And he said, yes, and if we want a person as the head of the CIA who was a yes man and says yes whether it's legal or illegal, I think that disqualifies him.

[EFerrari]

41. It reminds me of the "reasonable" tone serial killers use

when they're explaining to their victims why they are being forced to murder them.

[bigtree]

42. We have done scant justice to the reasonableness of cannibalism.

There are in fact so many and such excellent motives possible to it that mankind has never been able to fit all of them into one universal scheme, and has accordingly contrived various diverse and contradictory systems the better to display its virtues.

-- Ruth Benedict (1887–1948), U.S. anthropologist

[EFerrari]

43. Maybe that's what the BFEE is doing, displacing cannibalism.

:)

[Disturbed]

44. Hayden would have been perfect for...

the KGB or the Gestapo.

[EFerrari]

45. Well, it's not like he's out of the running. nt