Via Tim Cavanaugh at the Reason blog comes this frightening Q&A session involving Gen. Michael Hayden, Bush's new nominee to be head of the CIA:
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.
Uh, General, I'd say you're not nearly familiar enough with it. It certainly does say that no warrant shall be issued "but upon probable cause". Of course, this administration probably figures that's the loophole - you can't get a warrant without showing probable cause, but if you don't bother asking for a warrant, the probable clause standard can't apply. QED.
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I think the General knows exactly what he is sayiny. I intepret his words to mean that he is a follower of the "two ideas thoery.
That is that probable cause is only applicable to the warrent clause:
http://www.jmls.edu/facultypubs/oneill/oneill_column_0304.shtml
Even if Hayden is consciously using the "two ideas" approach, the government can't have it both ways. Gonzales testified to Congress that "reasonable basis to believe" was "essentially the same" standard as "probable cause", so one of them is lying. Good thing they weren't under oath.
John Cercone may well be right. Of course, the two ideas theory guts the Fouth Amendment, which I suspect is what the Bush administration would like.
When I re-heard Hayden's remarks once he was nominated to DCI, I realized that he may be representing exactly that "two ideas" position. I didn't know there was a name for it. Like Ed, I figured the argument would be "we don't need to ask for a warrant, so we don't need probable cause". Ridiculous. Outrageous. Asinine.
The sad thing is while the article does not cite specific "exceptions" Thomas refers to, chances are that such exceptions don't exist. Presumably one of the "exceptions" would be a search/seizure when an officer witnesses the commission of a crime. However, that officer must file paperwork, swear in court, and be allowed to be challenged under oath on whether or not he truly had probable cause. If not, all eveidence resulting from the search can be thrown out. The probable cause standard is always there and the officer must (in a sense) swear out a warrant -- even after the fact! (Note the similarity to the FISA grace period in this regard.)
Rather than follow long-standing precedent of throwing out tainted evidence gathered without probable cause, Thomas/Scalia seem to believe that the test can't be applied in practice and therefore should be ignored. All such evidence is then admissible and the probable cause standard is unnecessary, QED.
Not to draw any Nazi parallels, but :-
Nazi jurist Dr. Werner Best stated, "As long as the [Gestapo] ... carries out the will of the leadership, it is acting legally."
"Just because it never happened doesn't mean it isn't true"
Some of the commenters at Hit and Run remarked that Hayden is correct, saying that the standard for a warrant is probable cause, but the standard for search and seizure is reasonable cause.
But how can someone establish that a search or seizure is reasonable without obtaining a warrant upon demonstrating probable cause to a third party (the judiciary)?
I understand there are obvious cases where search or seizure can occur without a warrant (like apprehending a bank robber) but there has to be some sort of demarcation point, otherwise it would be left to discretion alone.