A number of blogs are discussing that exchange that General Michael Hayden had with a reporter last January. Depending on which news source you read, Hayden may or may not be about to replace Porter Goss as head of the C.I.A. so his concept of governmental power could matter even more than it already does.
In fairness, there is a way to interpret Hayden's remarks that isn't quite as clueless as he may have seemed that day. The reporter, Jonathan Landay, suggested that the government has to have probable cause to execute a search that does not violate an American's right against unlawful searches and seizures. That's not exactly right, either. The Fourth Amendment says there can be no unreasonable searches and seizures, period. That's probably the point Hayden was trying to make.
As a reader of this site, Robert Cosgrove, wrote to me, "The fourth amendment requires that searches be 'reasonable.' Where a search requires a warrant, the warrant must be based on probable cause. However, many searches do not require a warrant, including searches of lockers by school authorities, searches incident to arrest, protective sweeps and weapons pat-downs, and others."
This may be splitting hair strands right down to the scalp. We agree that searches must be "reasonable." Beyond that, you can interpret the part about "probable cause" to say that is the standard required to obtain a warrant where one is necessary. Or you can interpret it to say that "probable cause" is the quality that makes any search, with or without a warrant, "reasonable." Both interpretations get you to pretty much the same place.
If you buy the distinction, the General's error came when the reporter asked, "Does it not say 'probable cause?'" Hayden said no, which left him wide open to the charge that he really didn't know those words were in the Fourth Amendment. But he may have meant, "No, it does not say that in quite the way you're presenting it." In which case, his mistake was not in also saying something like, "Yes, I know the words 'probable cause' are in the Fourth Amendment," and explaining the precious distinction he was trying to make.
Below, we have a link to a video of the exchange as it was presented at the time on Countdown With Keith Olbermann, so you can judge for yourself. Thanks to Roy Sorenson for suggesting I post it.
