Positive Liberty

Writing in Slate, Fred Kaplan notes that Gen. Michael Hayden, the chief architect of the illegal NSA domestic spy program — and now the President’s nominee to serve as CIA director — does not even know the text of the Fourth Amendment:

Jonathan Landay of Knight-Ridder pointed out that the Fourth Amendment requires that a warrant—whether to search Americans’ homes or intercept their communications—must be preceded by a finding of “probable cause,” which the NSA intercepts under question did not involve.

Here is the subsequent exchange:

Hayden: No actually, the Fourth Amendment actually protects all of us against “unreasonable search and seizure.”

Landay: But the measure is “probable cause,” I believe.

Hayden: The amendment says “unreasonable search and seizure.”

Landay: But does it not say—

Hayden: No. The amendment says—

Landay: The court standard, the legal standard—

Hayden: —unreasonable search and seizure.

This is startling. Elsewhere in the speech, Hayden said, “If there’s any amendment to the Constitution that employees of the National Security Agency are familiar with, it’s the Fourth.” And he doesn’t know that it requires “probable cause” as the criterion for “reasonable” search?

I guess it doesn’t really surprise me that this is the same guy who came up with the warrantless wiretaps program. But that he would be rewarded for it — that’s what really hurts.

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