more on Hayden's Mistaken Understanding of the Fourth

[David Farber <dave () farber net>]

Begin forwarded message:

From: Gene Spafford <spaf () cerias purdue edu>
Date: May 6, 2006 3:10:29 PM EDT
To: dave () farber net
Cc: ip () v2 listbox com, a () citrano com
Subject: Re: [IP] Hayden's Mistaken Understanding of the Fourth

Re: Anthony Citrano's blog post about Gen. Hayden


I think it entirely possible that Hayden's response is being  
misinterpreted.  As I read his comments to Jonathan Landay, I see him  
as saying that the 4th protects against unreasonable searches -- that  
probable cause only comes into play if the search is unreasonable.    
There is no need to show probable cause if the search is reasonable.

The question then comes down to one of "reasonable."  I believe that  
individuals in the government are interpreting "reasonable" in a  
manner that leads them to believe that what is being done does not  
require a showing of probable cause.  At the same time, there are  
many people outside of that group who are concerned about how  
"reasonable" is being defined without oversight.

To the best of my knowledge (and please correct me if I am wrong)  
there has been no public disclosure  about what is actually being  
intercepted and/or monitored by the NSA, and therefore we really  
don't know if it is reasonable according to our own definitions.

There are many people who mistrust those in authority, automatically,  
and the intelligence agencies in particular, and thus the presumption  
is that the monitoring is not reasonable.   There is also a number of  
people who do not trust the current administration, especially given  
their record as regards candor on important issues, and they also  
presume that the monitoring is not reasonable.  That has led to a lot  
of debate without showing much progress, because we don't really know  
the limits, and so many people are starting from different base  
assumptions about what is being done..

As for me, I worry that the monitoring MAY BE unreasonable, but I am  
not going to label it as such without more evidence, nor am I going  
to malign people such as Michael Hayden who appear to honestly  
believe -- based on legal advice and long service -- that what they  
are doing is legal.

My biggest concern seems to be more in line with one of Mr. Citrano's  
implications -- that so many of our elected representatives in  
Congress are unwilling to show the gumption to ignore issues of  
politics, and instead honor their oath of office to uphold the  
Constitution -- and thus hold a real, in-depth hearing on issues such  
as IF the program involved is in violation of the law.



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