Would You Believe "Possible Cause?"

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Lt. Gen. Michael Hayden, America's foremost Kurtwood Smith lookalike and President Bush's probable choice to replace Porter Goss as Director of Central Intelligence, gives a less-than-strict constructionist reading of his all-time favorite amendment to the U.S. Constitution:

QUESTION: Jonathan Landay with Knight Ridder. I'd like to stay on the same issue, and that had to do with the standard by which you use to target your wiretaps. I'm no lawyer, but my understanding is that the Fourth Amendment of the Constitution specifies that you must have probable cause to be able to do a search that does not violate an American's right against unlawful searches and seizures. Do you use—

GEN. HAYDEN: No, actually—the Fourth Amendment actually protects all of us against unreasonable search and seizure. That's what it says.

QUESTION: But the measure is probable cause, I believe.

GEN. HAYDEN: The amendment says unreasonable search and seizure.

QUESTION: But does it not say probable—

GEN. HAYDEN: No. The amendment says unreasonable search and seizure…

GEN. HAYDEN: … 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.

Video clip, courtesy of reader Les Milton, here.

The Fightin' Fourth, once again, reads as follows:

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.

En Español:

El derecho de los habitantes de que sus personas, domicilios, papeles y efectos se hallen a salvo de pesquisas y aprehensiones arbitrarias, será inviolable, y no se expedirán al efecto mandamientos que no se apoyen en un motivo verosimil, estén corroborados mediante juramento o protesta y describan con particularidad el lugar que deba ser registrado y las personas o cosas que han de ser detenidas o embargadas.

NEXT: "They should not have dismissed me for what I believed."

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  1. Newsflash: Government employees and elected officials don’t understand the Constitution.

    In other news: Dog bites man.

  2. So just ask this dork what the meaning of “unreasonable” is. For instance,
    QUESTION: “Gen. Hayden, is it unreasonable to crawl up someone’s ass far enough for them to taste the probe without a warrant?”
    GEN HAYDEN: “Shut up and just tell me what it tastes like, punk!”

  3. Tim, rendering the Constitution in heathen tongues is unAmerican, and should be outlawed.

  4. I am not attorney either, just a law student, but the general isn’t offbase. If you read the amendment carefully, it is plausible to interpret it as protecting generally against unreasonable searches, and specifically setting an independent standard for warrants. This does not eliminate the incentive for the police to obtain a warrant.

    When the police get a warrant they get the benefit of often being able to use the evidence they gathered as long as they were reasonable in relying upon the magistrate’s determination that probable cause to search existed – even if later a judge determines probable didn’t actually exist.

    However, if they simply search, and later it is determined that the search was unreasonable (more or less meaning there was no probable cause), than the evidence will be excluded.

    In other words, if a warrant is issued the search is presumptively reasonable, if not warrant the search isn’t.

    Anybody else have a better understanding?

  5. I just took my criminal procedure final a week ago, so we’ll have to wait until grades come in to determine the merits of my input.

    The Fourth Amendment, grammatically, is two independent clauses.

    1. The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated.

    2. 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. Given that, is a warrant always required, or only when it would be unreasonable to act without one?

    So the question is when do you need a warrant. The answer could plausibly be “never,” but, on the other hand, why even have a standard for warrants if they are never required?

    We are actually lucky that, in the 60s, the Court abandoned the “physical trespass” standard so that we might consider a wiretap a “search.”

    Anyway, this is all very esoteric. The point is that the general’s statements offers some insight into where the NSA falls on the debate: the logically untenable position of never needing a warrant.

  6. “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,…”

    I’m surprised he didn’t argue that it only protects people from searches and seizures–as opposed to just searches.

    …or that he didn’t say, “That depends on what the meaning of the word “and” is.”

    …or that he didn’t say that the Bill of Rights only applies to American citizens.

    …or that he didn’t say, “Don’t you know there’s a war going on?”

  7. …and before the whole list of legal scholars chimes in, I’d like to point out that whether we should allow someone who interprets the Fourth Amendment this way to run our secret surveillance agency is not a legal question.

  8. The more the courts and executive agencies elaborate exceptions on the reasonableness prong, for reasonable suspicion Terry stops and frisks and such, the less protection offered by the warrant requirement and probable cause and the less incentive for police to seek warrants.

    Also, Leon’s good faith exception has not been universally followed by state courts.

  9. There is also the meaning of “in”. Any person or package crossing our border has always been subject to search without warrant or cause. I don’t see why any communication crossing our border is any different.

  10. Any person or package crossing our border has always been subject to search without warrant or cause. I don’t see why any communication crossing our border is any different.

    …and if it’s always been done that way, then it can’t be unconstitutional?

  11. Since they’re not seeking/using warrants anyway, they need no probable cause.

    Remember. This is the government which outsources “vigourous interrogation.”

  12. Call me one of those “loony libertarians,” but when did we stop arguing that maybe, just maybe, the Constitution has been interpreted incorrectly over the years?

    I mean, hell, the misuse of the Commerce Clause alone is enough to question the “legal minds” that have been running this country sincethe New Deal at least.

  13. …and before the whole list of legal scholars chimes in, I’d like to point out that whether we should allow someone who interprets the Fourth Amendment this way to run our secret surveillance agency is not a legal question.

    Of course it is. If he is interpreting it correctly, by which I mean as the courts have interpreted it (and, sadly, I think he is correct in that probable cause goes to warrants, not to whether any search under any circumstance is illegal if probable cause is not present), then his understanding of the law as it is is no reason to object to his nomination or confirmation. If he has it wrong, that’s another matter.

  14. General Hayden is absolutely correct. The Fourth Amendment establishes a reasonableness requirement, not a probable cause requirement.

    Look at the plain text: It says warrants may not issue without probable cause, but searches and seizures themselves need only be reasonable. Notice that there isn’t any requirement that searches and seizures be supported by a warrant.

    Now, the Supreme Court has explained that searches and seizures conducted without warrants are usually unreasonable–but not always. There are several recognized exceptions to the warrant requirement. I don’t know too much about when warrants are unnecessary in the national security context. But I do know that, generally speaking, warrants aren’t required in time-sensitive emergencies.

  15. Hmmmmmm, I’ve just read the 4th amendment again. I do see the probable cause thingy there.

    I view probable the same way I view the word reasonable. Is it probable that there are people using phones to engage in terrorist planning? Yes. Is it reasonable to tap their phones? Yes. nuff said.

  16. 😡

  17. Why does Jonathan Landay with Knight Ridder hate America?

  18. If the Constitution has lost its meaning, how about those words of Jesus in red letters?
    Do all words eventually fade to blank like engraving on tombstones?

  19. THE GODDAMM CONSITUTION SHOULD ALWAYS BE READ IN ENGLISH! NOT SPANISH!

    Fucking Conquistas!

  20. I agree with Law Student #2’s analysis and *yuck!* I happen to agree with the government on this one. The text of the amendment seems pretty straightforward to me.

    Standard for search and seizure: reasonableness

    Standard for the issuance of a warrant: probable cause supported by oath or affirmation

    If an executive administration orders searches and seizures that seem unreasonable, the people may resort to kicking their asses out in the next election or congress may impeach.

    The US Constitution is not entirely a libertarian document, no matter how much some of us wish it to be. Hopefully, it will be amended in the future to be more libertarian.

    I’m surprised that Cavanaugh sees it differently. Doesn’t he have an English degree? Of course, university English courses focus on literature. Maybe they should focus a bit more on something that IMO matters more, like sentence structure.

    (I love literature, but I don’t see the utility in teaching it at universities. Then again, I don’t see the utility in about half of the subjects taught at modern universities.)

  21. Con Kiester,
    Herrick and his Balls’ alter ego is Pro Keester.

    All I’m sayin’ is: don’t drop the soap.

  22. Once again I find myself wondering what this administration’s defenders wouldn’t trade for the pretense of security.

    If he is interpreting it correctly, by which I mean as the courts have interpreted it (and, sadly, I think he is correct in that probable cause goes to warrants, not to whether any search under any circumstance is illegal if probable cause is not present), then his understanding of the law as it is is no reason to object to his nomination or confirmation.

    This isn’t going to lead to a discussion about jury nullification, is it?

    Really, I’m not interested in the legal implications of advice and consent–I just note that it throws this to congress rather than the courts. …and that those of us concerned about having our calls screened by the CIA should feel free to contact our senators.

  23. If an executive administration orders searches and seizures that seem unreasonable, the people may resort to kicking their asses out in the next election or congress may impeach.

    Out of curiosity, if they are screening every call coming in or out of the United States, does that seem “reasonable” to you?

  24. Personally, reading through the thing myself for the first time in years, I agree. There can be no unreasonable searches without probable cause or warrents (presumably for unreasonable searches) without probable cause. But reasonable searches don’t seem to require jack.

    Which I suppose is how things are now, depending on how you define “reasonable”. If a cop sees me steal something and then run into my friend’s house, he doesn’t need a warrent to kick the door down and yank me out. However if his snitch tells him I’m hiding there, he has to take that to a judge and see what the judge thinks of “fast” Louie’s information.

    I agree that the use of commas makes things ambiguous, one could also read it that there can’t be any unreasonable searches period and that warrants (for reasonable searches) require probable cause.

  25. Ken,

    That’s a tough one for me, and personal. My wife is a German from Hamburg, so she makes regular international calls to there. I’m sure they’ve tapped her calls, since Hamburg was where the 9-11 attacts were partially planned.

    I don’t think it’s different than customs at the border. Like so many things about the government, it depends upon the consequences. If the “listeners” are screwing with non-terrorists, I think it’s unreasonable. If they really are trying to focus on terrorist activities, I think it’s reasonable.

    Essentially, I think we need serious scrutiny of these “listeners,” but I don’t think the policy is necessarily unreasonable.

    My wife feels pretty much the same way, and she is actually affected by this policy, unlike most people talking about it.

  26. The Real Bill,

    Correct me if I’m wrong, but the warrantless wiretaps are illegal according to FISA, which mandated no domestic surveillance shall take place without the issuing of a warrant. Wouldn’t any monitoring of international calls – whether reasonable or not – without a warrant be illegal? FISA, coupled with the Fourth Amendment, does not allow for domestic surveillance without a warrant, will shall not be issued but upon probable cause. At least that’s my understanding of it.

  27. Once again I find myself wondering what this administration’s defenders wouldn’t trade for the pretense of security.

    Oh puleeze! I’ve defended a few of the current administration’s decisions where I thought they happened to be right, but I’m hardly a Bush administration defender.

    Look, if a guy gets put into a position where his job is to apply the law as it currently stands, it’s reasonable to expect him to know what the state of that law is. It is also reasonable (if unrealistic these days) to expect him to apply it as it currently is. Now, does the Bush administration take an overly broad — nay, dangerously overbroad — view of executive powers? You bet your sweet ass they do. But in this particular case, asking what the 4th Amendment requires and getting that particular answer simply doesn’t amount to clear and convincing evidence — hell, it doesn’t even rise to probable cause — that Hayden doesn’t understand the law or intend to violate it.

    Now, maybe he does. Maybe (maybe even probably), as a Bush nominee he intends to tow the administration line regarding that expansive view. My only point was that his failure to read the 4th Amendment as either you or Mr. Cavanaugh might prefer him to read it, regardless of how as a matter of positive law the courts have in fact construed it, does not amount to a smoking gun.

  28. BTW, is it “tow the line” or “toe the line”? Doesn’t matter; either works.

  29. One tow over the line sweet Jesus.

  30. daniel,

    I’m not sure if this action is illegal or not. Congress gave the president broad powers to prosecute the “war on terror”. When laws conflict, I suppose that it’s a case for the courts. FISA may need to be updated. The constitution does give broad powers to the president during times of war. Conflicts between these powers and the amendments to the constitution need to be decided by the SCOTUS.

    Personally, I’m a rational anarchist (as defined by Heinlein). If a law is stupid and you can get away with violating it, do so. I strongly believe that law and morality are distinct, and that laws are only as good as the justifications behind them. Essentially, I believe that all citizens (including the president) should ignore laws that are harmful or stupid.

  31. ruthless (“I wonder where Ruth is?” — Nick Danger):

    Seals & Croft, late 60’s or very early 70’s, no? I think I have that LP lying around in storage somewhere.

  32. If you read the amendment carefully, it is plausible to interpret it as protecting generally against unreasonable searches, and specifically setting an independent standard for warrants.

    It also says nothing about excluding evidence obtained from unreasonable searches. The important thing is not what we here determine the text to mean, but how the courts implement it, after all.

    The courts, in my layman’s understanding, have determined that probable cause is the standard for reasonableness. In other words, in order for a search to be reasonable, it must either be supported by a warrant, or, if there is no time to get a warrant, it must be supported by sufficient probable cause that a court would have issued a warrant based upon the information known prior to the search.

  33. The thing that bothers me the most about this is not whether the General’s interpretation of the 4th amendment is correct, it’s that he didn’t immediately disclaim any authority to search on American soil. The CIA is not supposed to confine itself to international intelligence gathering and leave the domestic stuff to the FBI and state authorities.

  34. Karen,
    Did you mean to say the CIA is foreign, the FBI domestic?

    We shall serve no wine before its time.

  35. Hayden is a four-star, not a three-star.

  36. Standard for search and seizure: reasonableness

    Standard for the issuance of a warrant: probable cause supported by oath or affirmation

    And warrants – “particularly describing the place to be searched, and the persons or things to be seized” – are authorisations.

    Maybe they should focus a bit more on something that IMO matters more, like sentence structure.

    Indeed. The amendment is one sentence. A sentence is a group of words which expresses one complete thought. The meaning of this sentence is perfectly clear.

    It doesn’t take an augur to understand the Constitution.

    In Marbury the Supreme Court cleverly took for itself the power to determine the constitutionality of government acts. But it has been – from the beginning – specifically the job of the president to “preserve, protect and defend the Constitution of the United States.”

    In my opinion this president is, by ordering warrantless searches and seizures on American soil, violating his oath of office and, in consequence, should be tried and convicted in the Senate for this high crime.

  37. yeah, raymond, but look: nobody, really nobody asks for your opinion, so that’s that.

  38. BTW, is it “tow the line” or “toe the line”? Doesn’t matter; either works.

    A gentle “Aaargh!” It’s “toe the line.” Toe, toe, toe! It means, “to conform.” Imagine drawing a straight line on the ground, then having a group of people all line up side-by-side with their toes touching the line. Like they might do in the British Navy or something. Everyone standing precisely in place, in perfect alignment. That is the literal situation that the metaphor is supposed to convey.

    I believe that George Orwell complained about people spelling “toe the line” as “tow the line” in his essay “Politics and the English Language.”

  39. Editors, bleech! The bane of creative writing! In fact, however, though I thought “toe” was the historical usage, it occurred to me mid-comment that “tow the line” in the sense of pulling together with the team works just as well. So fie on you, Orwell and all other freedom hating, totalitarian metaphor prescriptivists!

  40. In my opinion this president is, by ordering warrantless searches and seizures on American soil, violating his oath of office and, in consequence, should be tried and convicted in the Senate for this high crime.

    And what might that crime be? Orderly conduct? As both law students and the Real Bill have already pointed out, the Fourth Amendment applies one standard to searches and seizures, and another to warrants. There is no constitutional prohibition on warrantless searches or seizures, only on unreasonable ones. Do you really think that a cop who witnesses a crime cannot arrest the criminal, without first running off to the nearest courthouse, and then sprinting back, holding out hope against hope that the perp was too stupid to flee? Or that TSA can’t search the bags of any prospective passenger who hasn’t behaved suspiciously enough to justify a warrant for his arrest?

  41. Stevo, you are correct that it is “toe”, not “tow”. My understanding is that the phrase comes from bare-knuckle boxing, when a line was drawn in the dirt and each combatant had to keep one foot up to the line or lose the match.

  42. Administration defenders are using two cute tricks in this thread:

    First, arguing as if the “search” language and the “warrant” language are wholly unrelated, when in fact they are part of the same sentence, expressing the same thought.

    Second, presenting the exceptions such as exigent circumstances as if they are the general rule.

  43. The courts, in my layman’s understanding, have determined that probable cause is the standard for reasonableness. In other words, in order for a search to be reasonable, it must either be supported by a warrant, or, if there is no time to get a warrant, it must be supported by sufficient probable cause that a court would have issued a warrant based upon the information known prior to the search.

    Well put, Crimethink.

    If Hayden wants to play with the idea that warrantless searches requre a lower standard, such a reading would be literally consistent with the text, but then so would a reading where no warrantless searches are permitted at all for any reason.

    I think the government is already starting to lose on these oddball anti-terrorism legal theories in court. The more somebody like Hayden spouts nonsense like this, the more likely it is that courrent and future court members will teach him a lesson. In other words, Hayden is being so obtuse it propably helps his opposition more than his cause.

  44. “…arguing as if the “search” language and the “warrant” language are wholly unrelated, when in fact they are part of the same sentence, expressing the same thought.”

    No, joe, not “in fact” — just in your opinion. And your opinion, lest we forget, is somewhat clouded (colored?) by happenstance, cuz you are a partisan Democratic hack, no?

  45. I believe that the USSR too once had a constitution that protected the people, and that once Stalin even assured everyone that, since there were constitutional protections they would all be safe from the state.

    Could this be why Georgie Porgie loved Putin so much?

    Warrants? Reasonable? Amazingly Libertarians will have guards stationed in their houses (in the form of some type of electronic device), and yet still be debating the meaning and history of “reasonable”.

    2+2=5 comrades. Reasonable means whatever the man behind the curtain says it does.

  46. Joe:

    First, arguing as if the “search” language and the “warrant” language are wholly unrelated, when in fact they are part of the same sentence, expressing the same thought.

    They’re two separate clauses, expressing two separate but related concepts. To argue that they should be read as though “reasonable” and “probable cause” were synonymous is to defy reason. You might just as well argue that the takings clause and the privilege against self-incrimination should be held to each other’s standards, as they both appear in the same Fifth Amendment, which also happens to have been written in the form of one great big sentence.

    See my prior comment about TSA only searching the bags of terror suspects, and then only after obtaining a search warrant, under the same standards that would have to be met for an arrest warrant. Everyone else can carry anything they want on the plane, just by waving Joe’s version of the Fourth Amendment. Fortunately, courts don’t buy into that nonsense, but if they ever do, I’m done flying.

  47. Just sayin, quotes me writing, “…when in fact they are part of the same sentence, expressing the same thought…”

    Here’s the language: “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.”

    Looks like the same sentence to me. But that’s just, like, my opinion, may. And being a Democrat, I must be wrong, and they must be differenct sentences about wholly unrelated topics.

    Just sayin’ you’re an idiot.

  48. Now I’m going to have to do some research. I had always been taught that the Fourth Amendment, in effect, established judicial overview of the government’s “police power” to search and seize. Why? Because a reasonable search or seizure required court authorization in the form of a warrant, except AS DETERMINED BY THE COURT, in emergency cases where the “probable cause” is also clear and the government can be confident that the warrant WOULD have been issued. In those warrantless, emergency cases, there is still judicial review after the fact, whereby the court can invalidate the search or seizure (e.g., by tossing evidence out of court or other remedies).

    I learned this so long ago that I have forgotten the basis for the interpretation. Hence my need to research anew, to refresh my memory.

    I would be interested to learn whether General Hayden agrees that searches and seizures should be subject to judicial overview, which for me, seems to be the heart of the matter. His comments on this topic so far do not inspire my optimism.

  49. joe,

    I think at least some of the controversy is related to the question of which portion of the sentence does “no Warrants shall issue” belong to. Is it paired with “… shall not be violated” in such a way that those two things (“… shall not be violated” and “no Warrants shall issue”) require probable cause, or does it stand alone as the thing that shouldn’t be done, “but upon probable cause…” Here are two copies of the same sentence with parenthesis and emphasis to show the groupings:

    (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 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).

    I don’t have the background to know if either of those parsings would be the unambiguously clear winner by the authors. RPG might. I do know enough to see that in each case both “search” and “warrant” are part of the same sentence, expressing the same thought. The problem is the thoughts of the two different parsings are different.

    My guess is the sentence was ambiguous when it was written, but if someone can produce some links with enough background on either late eighteenth century colonial/American English or this particular amendment, I’ll read them and reevaluate.

  50. Xrlq says, “See my prior comment about TSA only searching the bags of terror suspects, and then only after obtaining a search warrant, under the same standards that would have to be met for an arrest warrant. Everyone else can carry anything they want on the plane, just by waving Joe’s version of the Fourth Amendment. Fortunately, courts don’t buy into that nonsense, but if they ever do, I’m done flying.”

    I took my first airline flights during a time when you could carry a gun, or whatever, onto an airplane. Never had a problem. Flying was fun. Then, in response to a rash of hijackings in the 70s, it became illegal to have a gun on an airplane, and authorities began to “tighten” the security screws in several waves, corresponding to high-profile airline incidents. Recently, I became intimately acquainted with a Homeland Security wand, once on the flight out, and once on the flight back. I’m done flying.

  51. Xrlq,

    You are deliberately playing dumb to get the result you want, by reading the language as if you are wholly ignorant of the need to acquire a warrant absent compelling circumstances. Pray tell, where in that language is the statement that a warrant must EVER be obtained? And yet, I doubt that you would claim that warrants are never required for a search, and that the clause laying out the standards for warrants wat tucked in just in case the govenrment felt like acquiring warrants that it didn’t need. Hell, where does it even define what a warrant is?

    Ergo, it is impossible to read the amendment as “plain text” only, without an understanding of what a warrant is and what it is used for. Once you allow this understanding into your analsyis (as the authors of the Constitution did, since they didn’t deem it necessary to define what a warrant is or what it is used for, which means they assumed their readers would know already), it becomes impossible to read the second clause as anything but an expansion of th idea in the first; ie, a description of how to make sure a search is reasonable.

    Also, your airport bag search argument ignores the fact that the passengers consent to the searches as part of their contract with the airline. The Fourth Amendment would no more protect a flyer from having his bag searched than it would protect someone in line for a concert from being patted down. If you don’t like it, leave.

  52. And what might that crime be? Orderly conduct? As both law students and the Real Bill have already pointed out, the Fourth Amendment applies one standard to searches and seizures, and another to warrants.

    Well, if not for that high crime, then one of the many others. Take your pick. If you thought that Clinton should have been removed from office for perjury (like I did), then I don’t see any reasonable, consistent standard under which you can claim that Bush deserves to remain in office. This is a man who has claimed the right to interpret the Consitution as he sees fit, with no review by any authority. If he has his way, it won’t matter what the courts say about warrantless searches, it will only matter what he (or his successors) says about warrantless searches. If that’s not a high crime, I don’t know what is.

  53. Stevo should change his name to Stevo Toe.

  54. “Also, your airport bag search argument ignores the fact that the passengers consent to the searches as part of their contract with the airline. The Fourth Amendment would no more protect a flyer from having his bag searched than it would protect someone in line for a concert from being patted down. If you don’t like it, leave.”

    Except that it’s not part of the contract with the airline. But, hey, why let the facts interfere?

  55. Except that it is part of the contract, jeffiek. It says you and are bags are subject to a search right on the ticket.

  56. Use of the paper to print a government mandated procedure does not make it “part of” the contract.

    Contracts spell out the rights and obligations of the parties involved.

    Or am I contracting with TSA for my flight?

  57. WARDEN: Okay, Rocky, out of the cell. We’re going to toss it and when we find the shiv you used on Big Jim you’re going to do 90 days in the hole.

    ROCKY: Not wid out a warrant, you don’t! Beat it, screw, and get me my mouthpiece! I know my rights!”

  58. Actually, jeffiek, that isn’t so. If clauses are required by operation of law to be in certain sorts of contract (consumer warranty provisions, for example), they’re there and enforceable between the private parties.

  59. “Actually, jeffiek, that isn’t so. If clauses are required by operation of law to be in certain sorts of contract (consumer warranty provisions, for example), they’re there and enforceable between the private parties.”

    That’s my point. The searches aren’t a part of the contract between the flier and the airline. They’re there because of law, not because of agreement between the contracting parties.

  60. Perhaps so, but it is simply wrong to insist that they are therefore not part of the contract. Some idealized sense of what contracts should be, perhaps, but in the real world those provisions are every bit as much a part of the contract as anything drafted and agreed upon by the private parties.

  61. “Except that it is part of the contract, jeffiek. It says you and are bags are subject to a search right on the ticket.”

    Interesting thought experiment. If I’m contracting with another private party, and as part of that contract I say that I consent to a search by the relevant governmental authorities, is that actually, in and of itself, sufficient consent for the governmental bodies to conduct the search? I never practiced criminal law, I’m not sure what current law is. Or does the governmental body have to make a specific request or can they rely on the contract? Do I even have the authority to give up a Constitutional right as part and parcel of a private contract? For some reason here I think the answer is “No”.

    Maybe I do not understand the airline industry enough.

  62. “We are actually lucky that, in the 60s, the Court abandoned the ‘physical trespass’ standard so that we might consider a wiretap a ‘search.'”

    Why are we “lucky” about that? Seems to me to be a perfectly appropriate case for requiring a Constitutional Amendment. People are always griping about “activist courts”, but if courts took less into their own hands then gosh, we might actually have to take some responsibility for what the Constitution says!

    We have allowed courts to make us lazy and complacent as citizens.

  63. Anon2, the syntactic ambiguity is interesting, but if you read it carefully, you’ll see why it can’t be right. As with most syntactic ambiguities (cf. “the kids are ready to eat”), common sense suffices to disambiguate. Under either reading of the Fourth Amendment, there will be two requirements, one relating to searches and seizures, the other to warrants. Under the traditional reading, which Tim ripped Gen. Hayden a new one over, the requirements are as follows:

    1. The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated.

    2. 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.

    If, however, we were to adopt the other syntactically permissible reading, in which the probable cause requirement attached to the entire sentence rather than merely the second clause, we’d end up with these two requirements, instead:

    1. The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, 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.

    2. 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.

    Both readings result in the same requirement for warrants, but only one (mine) results in a coherent requirement for searches and seizures. The other would still only generally protect citizens from unreasonable searches and seizures, but once the probable cause requirements were met, it wouldn’t even do that.

    Joe:

    You are deliberately playing dumb to get the result you want, by reading the language as if you are wholly ignorant of the need to acquire a warrant absent compelling circumstances.

    I’m playing dumb?! You’re the one conflating three separate concepts of reasonableness, probable cause, and search warrants, not me. I’m not arguing for a position I necesasarily want, but for the only legally, rationally and grammatically defensible one: warrants and searches/seizures are different.

    Pray tell, where in that language is the statement that a warrant must EVER be obtained?

    There is no such requirement, at least not explicitly. Implicitly, however, one could reasonably that the framers intended to leave the requirements for obtaining search warrants essentially as they were, i.e., where police could conduct a warrantless search under common law, they could continue to do so under our Constitution; and where they couldn’t, they couldn’t. Alternatively, there’s the general “reasonableness” requirement, which could be (and typically is) invoked to require cops to obtain warrants in situations where it is reasonable to require them to do so, and therefore unreasonable for them to fail to comply. But there has never been a flat-out ban on warrantless searches, not before the Revolution, not after it, and not immediately after the Bill of Rights was ratified.

    Ergo, it is impossible to read the amendment as “plain text” only, without an understanding of what a warrant is and what it is used for. Once you allow this understanding into your analsyis (as the authors of the Constitution did, since they didn’t deem it necessary to define what a warrant is or what it is used for, which means they assumed their readers would know already), it becomes impossible to read the second clause as anything but an expansion of th idea in the first; ie, a description of how to make sure a search is reasonable.

    Nonsense. If the drafters had intended to impose the same restriction on warrants as they did on searches and seizures, they could have easily drafted the Fourth Amendment that way. They didn’t, because they didn’t want to. They wanted a general protection against unreasonable searches, but they also wanted a flat out ban on general warrants, whether our courts thought they were reasonable or not. That’s why the standards are different; prior to the Revolution, general warrants were a real problem, while general proclamations of reasonableness were not.

  64. Jim, that’s an interesting question. In my comments above I was really addressing what I take to be the legally operative effect of those provisions which is to preclude a passenger from taking legal action against the airline or airport. That was certainly so when airport security was privately conducted.

    But generally only parties to a contract or, in limited circumstances, third party beneficiaries have any standing to sue for breach. The government is not the beneficiary here, so it should have no standing with regard to the contract, itself.

    Moreover, it is fairly well settled law that the government cannot do through its private agents what would be illegal for it to do itself. (Example: the cops can use evidence a private citizen discovers under circumstances that would require a warrant if the cops went looking for it, but not if they tell the citizen to go do it for them.)

    Now that airport security has been federalized, the landscape changes.

  65. Xrlq,

    Do you really think that a cop who witnesses a crime cannot arrest the criminal, without first running off to the nearest courthouse, and then sprinting back, holding out hope against hope that the perp was too stupid to flee?

    No, I don’t; probable cause exists in that situation. My problem is with sliding the standard for warrantless searches down from “probable cause” (ie, a crime clearly has been or is about to be committed) to “reasonableness” as defined by the would-be searcher.

  66. CT:

    No, I don’t; probable cause exists in that situation. My problem is with sliding the standard for warrantless searches down from “probable cause” (ie, a crime clearly has been or is about to be committed) to “reasonableness” as defined by the would-be searcher.

    First, as discussed above, there is no explicit “probable cause” requirement for searches and seizures, only for warrants. The only two conceivable ways to stretch the “probable cause” requirement to apply to all searches and seizures is to (1) argue that all searches and seizures not based on probable cause are inherently unreasonable, or (2) ban all warrantless searches and seizures. The problem with the first argument is that it simply isn’t true in all cases. The problem with the second, of course, is that no matter how good your evidence is, it’s not always feasible to obtain a warrant in time to make the arrest. So we’re left with a general reasonableness standard which, FWIW, usually requires probable cause.

    On the flip side, your argument is off on another point; no one seriously contends that it’s up to the searcher/seizer to decide which searches or seizures are or are not reasonable. I suppose it may come to that if Kelo is extended to apply to contexts other than eminent domain and the takings clause, but there’s little danger of that happening anytime soon.

  67. Let’s put aside the quibbles about language for a moment. After all, there are people on this forum who think that unalienable rights can be given up, that there are humans who “don’t deserve to live”… So there’s no point in my parsing the (crystal clear) language of the amendment any further.

    I suspect the warrantless telephone-eavesdropping is just the tip of the iceberg. (Echelon was in service well before 9/11, after all.) I’ll bet your government is doing a whole lot of other interesting things that haven’t been leaked yet. Like warrantless arrests. Like extraordinary rendition. Like disappearances.

    And not only on the streets of Europe.

    Why, I’ll bet you there are people being held secretly in the US who don’t even know what they’re accused of.

    And how can your government get away with this? Because too many of you don’t know how to read.

  68. If the basis for engaging in a search or seisure that it is ‘reasonable’, then why would anyone ever need a warrent? Therefore, why would some of the smartest folks ever to start a country add the warrent part of the clause?

    How about this: The actual search and seizure must be reasonable, meaning if you are using a 1950 chevy to transport drugs, the govt. cannot take your house and boat, just the car. If you could be hiding a murder weapon on your person, the govt. cannot open you up and check to see if you swallowed it, etc.. That’s reasonable.

    But, the second clause means, in all cases, to do reasonable searches, a warrent is needed, based on probable cause.

  69. Kevin, that’s back to my earlier example, where cops can’t arrest you on the spot for a crime he personally witnessed you committing, unless he can trick you into staying put while he runs off to the nearest courthouse to obtain a warrant. Is that what you want? Or, more to the point, do you really think that’s what the framers wanted?

  70. And how can your government get away with this? Because too many of you don’t know how to read.

    And why can’t we read? Because we are educated by our government.

  71. Regardless of our opinions on the matter, the Supreme Court says the standard for searches/seizures is reasonableness, and NOT probable cause. Further, this reading can sometimes give people MORE protection than the competing view.

    Consider, for example, the Supreme Court’s opinion in Winston v. Lee, 470 US 753 (1985).

    In that case, a defendant had suffered a gunshot wound in the course of committing a robbery. He survived the gunshot, but doctors left the bullet in his body because they felt it was too risky to remove it. The prosecution wanted the bullet as evidence though. So they went and got a warrant, supported by PROBABLE CAUSE, to have the bullet removed.

    The Supreme Court held that they can’t remove the bullet. It didn’t matter that the cops had a warrant supported by probable cause. The standard for a search/seizure is REASONABLENESS. And it’s unreasonable to require a defendant to undergo life-threatening surgery, regardless of an advanced warrant supported by probable cause.

  72. It seems to me that, to be reasonable, searches and seizures ALWAYS need a warrant (= judicial review). Either, 1) wherever possible, authorities get one in court prior to the search/seizure, or, 2) on the basis of probable cause, they act first and later submit to judicial review (including a determination as to whether it was reasonable to search the actual places or seize the actual persons or things), risking the prosecution’s case (and a lawsuit!) whenever the judge does not agree that they both HAD probable cause and LACKED sufficient opportunity to get a warrant ahead of time.

    It is clearly the responsibility of the judiciary to limit the use of “ex post facto warrants” to cases of true emergency, and to ensure that abuse of this option always results in meaningful discipline for the authorities. Everything else needs a warrant upfront.

    Am I completely off base here? And if not, how can General Hayden be so off base?

  73. Tom says, “The Supreme Court held that they can’t remove the bullet. It didn’t matter that the cops had a warrant supported by probable cause. The standard for a search/seizure is REASONABLENESS. And it’s unreasonable to require a defendant to undergo life-threatening surgery, regardless of an advanced warrant supported by probable cause.”

    You seem to be putting the cart before the horse here — or at least unfortunately assuming that others are. It is understood that reasonableness is the standard, but also understood that probable cause is a necessary component of reasonableness. (Judicial assent, a.k.a., a warrant, is necessary to certify a reasonable search or seizure. Constitutionally, such warrants can be granted only after the fourth amendment specifications are observed.) Reading the Fourth Amendment, I see from the language that a search or seizure that is supported by probable cause might be UNREASONABLE, but a search or seizure is never REASONABLE without probable cause.

    Now, if anyone knows of a court case where the Supremes said that a search or seizure was reasonable without probable cause, or in which they established nonsense criteria for probable cause (e.g., speaking a foreign language as probable cause for suspicion of terrorism), then we have a problem. In that case, I’m sure those of you who are students of the Supreme Court will be quick to tell me how deep the doodoo is, in which we’re standing.

  74. The 4th amendment requires that searches be reasonable. Warrants issued due to probable cause satisfy the reasonableness requirement.

    However you can satisfy reasonableness in certain ways without having probable cause. For example you don’t need probable cause to conduct a consent search, yet consent searches are reasonable.

    As the state of the law stands, Hayden is technically correct (though I bet he intends to hew to the letter of the law rather than its spirit). But that doesn’t change the underlying belief that we should be suspicious of government spymasters, and willing to call them out rather than face gradual erosion of civil liberties.

  75. After reading this thread, my hatred of lawyers reached a new level.

  76. jeffiek,

    That a certain plank in a contrat is required to be in there by the government does not void that element of the contract.

    If you and I sign a contract to pay me minimum wage, you are contractually obligated to pay me that wage, even if you wouldn’t have put that wage in the contract absent the government’s mandate.

  77. James Merritt-

    Actually, the court has said in several instances that it is reasonable to conduct a search and a seizure of a person without either a warrant or probable cause. For example, police use a completely different standard of “reasonable articulable suspicion” when it comes to stopping someone they suspect who may be in the midst of committing a crime, and then doing a search of their person. However, as you say, they have not yet redfined PC to cheapen the understanding of it in anyway. Rather, they have merely stated that there are many exceptions to the general warrant and PC requirements to a valid search and seizure under the 4th.

    As some others have said here, I’m not sure that Hayden is showing a basic misunderstanding of the 4th amendment here. There’s an entire legal school of thought out there that insists that the framers meant that searches and seizures need to be “reasonable”, but that the default for “reasonableness” is not the requirement of a warrant. In other words, a warrant requires PC, but a reasonable search and seizure does not require a warrant.It’s true that at one time the Supreme Court held that the default for “reasonableness” WAS a warrant requirement, but that’s not necessarily true anymore as the Court has repeatedly carved out exceptions to the warrant requirement in the last 30 years.

    Now, don’t take this as a defense of the man. If he merely didn’t understand the 4th amendment, we’d be better off. However, it’s entirely possible that, in line with the typical Bush administration approach, he is insisting that the NSA will now interpret the 4th to call for “reasonable” searches and seizures without a warrant, “reasonable” being whatever THEY, not the Supreme Court, define it to be. That’s far worse than simply misunderstanding the 4th.

  78. By the way, re-reading some of the comments above, I should say I have no patience of those who insist that the “plain text” of the 4th only requires reasonableness, and not a warrant. If you interpret it that way, then there’s absolutely no reason for the framers to have even tacked on the whole second half of the amendment. If you read it that way then the 4th might as well say “all searches and seizures have to be reasonable, and oh yeah, if you do happen to ever use a warrant then that requires probable cause, but it’s not necessary to get a warrant so don’t even worry about it really.” To me it is implicit that reasonableness goes hand in hand with the warrant requirement, and no “textualist” will convince me otherwise.

  79. “Now, if anyone knows of a court case where the Supremes said that a search or seizure was reasonable without probable cause.”

    Here’s one: the fleeing felon rule. If the cops are in hot pursuit of a fleeing felon, they can search any place through which that felon runs.

    For instance, suppose you’re a drug dealer and you’re sitting at home, bagging up some pot on your kitchen table. And suppose, coincidentally, the cops happen to be chasing a fleeing bank robber through your neighborhood. Now suppose this bank robber runs right through your front door, through your house, and out the back door, and is never seen again.

    At this point, the cops can barge right into your house and bust you for the pot that you’re bagging up in your kitchen. Even though they didn’t have probable cause to believe that you had pot in your house, they don’t have to pretend that they didn’t notice it sitting right in front of them on your kitchen table.

    If probable cause were the standard, the cops would be forced to turn a blind eye to all sorts of evidence that they came across in the reasonable course of duty.

    Now it’s certainly true that the default rules for reasonableness hinge on probable cause. A search with a warrant supported by probable cause is presumptively reasonable (though not always, for example see my comment on Winston v Lee above). And a search without a warrant supported by probable cause is presumptively unreasonable (but not always — there are ten zillion exceptions to the warrant requirement, which are based on reasonableness and not probable cause). But the bottom line is still reasonableness, and not probable cause.

  80. For information on the history behind the Fourth Amendment’s text, check out:

    http://supreme.lp.findlaw.com/constitution/amendment04/01.html#4

    Consider Madison’s original drafting of the amendment:””The rights to be secured in their persons, their houses, their papers, and their other property, from all unreasonable searches and seizures, shall not be violated by warrants issued without probable cause, supported by oath or affirmation, or not particularly describing the places to be searched, or the persons or things to be seized.”

    That original text seems to pretty clearly only apply the probable cause standard to UNREASONABLE searches and seizures. (Of course, this wasn’t the text that was ultimately adopted — but I can’t convince myself that the adopted text changed this.)

  81. As I read the article, it seems as though this pronouncement of General Hayden’s incompetence is due to pundits misinterpreting the exchange between him and Mr. Landay.

    Mr. Landay’s original contention was that

    ” the Fourth Amendment of the Constitution specifies that you must have probable cause to be able to do a search that does not violate an American’s right against unlawful searches and seizures.”

    General Hayden replied

    “No, actually?the Fourth Amendment actually protects all of us against unreasonable search and seizure. That’s what it says.”

    From his reply, I assume his focus was on Mr. Landay’s use of the word “lawful” in place of the word “unreasonable”. As the 4th reads “unreasonable search and seizure”, I can see why he would choose to focus on Mr. Landay’s incorrect use of language.

    Mr. Landay responded with

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

    If you think about it, Mr. Landay’s focus here is on the stated exception to the “no Warrants” rule, “probable cause”.

    Mr. Landay didn’t notice that, in his previous statement, General Hayden’s focus was on the language describing the nature of the searches and seizures prohibited, and some other feature of the amendment, such as the “probable cause” exception.

    General Hayden responded with

    “The amendment says unreasonable search and seizure.”

    Which is a reiteration of his original point, that Mr. Landay misstated the language of the amendment.

    General Hayden didn’t note that, in his previous line, Mr. Landay’s focus was now on the exception, and not, as he assumed, on the language describing the nature of the prohibited searches and seizures.

    So, what happened in this exchange was that the General and the Correspondent began talking about two distinctly different, but related, subjects, both of which were related to the 4th amendment: the language describing the prohibited type of search and seizure, and the exception to that prohibition.

    It seems to me that, once he noticed Mr. Landry’s misstatement, he continued to reiterate his point that he misspoke, rather than listen to what Mr. Landry had to say.
    What played out here was a simple miscommunication of thoughts. It doesn’t seem fair to blame the General for this, nor to dismiss him as incompetent.

  82. Hi,

    I’m too lazy to sift through comments to see if this National Review article has been mentioned.

    It seems reasonable to me.

    http://article.nationalreview.com/?q=ODgxN2VkMzA3MTFjNWFmNzZjNzZiODVlYzI3YTdiZTc=

  83. I’ll try that as a hyperlink, though I recall I have trouble with them here on Hit and Run (or somewhere):

    National Review article

  84. Alexander Wolfe: “By the way, re-reading some of the comments above, I should say I have no patience of those who insist that the “plain text” of the 4th only requires reasonableness, and not a warrant. If you interpret it that way, then there’s absolutely no reason for the framers to have even tacked on the whole second half of the amendment.”

    It’s Venn-diagram logic: There are reasonable searches, and a subset of those are searches performed under a valid warrant. But only warrants that meet the stated requirements are valid warrants that are presumptively reasonable.

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