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Archive 1 | Archive 2 |
looks like Red Forman. Jigen III 12:58, 6 May 2006 (UTC)
This discussion page has several sections all about these topics, and some interrelated. I am taking the liberty of adding this new section as a disambiguation talk section, adding a new section for each of the two topics, and adding comments referring discussion to this disambiguation section or the other two topics. Since these topics seem to be the most controversial, I am adding these sections at the beginning of the Discussion page.
In the 2005-2006 timeframe, the government (NSA?) had been conducting extensive warrantless wiretapping. Different people were taking opposing views on whether this was legal (constitutional).
On January 23, 2006, Michael Hayden participated in a news conference, part of which also appears in a video posted several places throughout the web. Different people were taking opposing views on whether he said that "probable cause" was not mentioned in the Fourth Amendment.
These are actually two separate issues. If Michael Hayden said that "probable cause" was not in the Fourth Amendment, that would not affect whether the warrantless wiretapping was legal. Conversely, whether the warrantless wiretapping was legal does not depend on what Michael Hayden said at that news conference.
To clarify treatment of these two separate issues, please let us henceforth discuss these under the following two topics.
Warrantless wiretapping
2006 news conference/video: Did MH say that "probable cause" is not in the 4th Amendment
DavidForthoffer ( talk) 17:49, 10 September 2010 (UTC)
On January 23, 2006, Michael Hayden participated in a news conference. [1], part of which also appear in a video posted several places throughout the web [2] [3]. Different people were taking opposing views on whether he said that "probable cause" was not mentioned in the Fourth Amendment.
This has been discussed on this Discussion page in the following sections.
Video clip of that quote from january
Bias in Warrantless surveillance section?
I'am removing this part of the article
4th Amendment
DavidForthoffer ( talk) 17:49, 10 September 2010 (UTC)
Let's see if we can find an objective answer to this question.
The following is cut-and-paste verbatim from Democracy Now! coverage of the January 23 National Press Club meeting. The discussion preceding this quote was from JAMES BAMFORD and was suggesting that their FISA procedure of warrantless wiretaps was decreasing the protections of U.S. citizens. So JONATHAN LANDAY's "stay on the same issue" clearly was referring to that issue.
JONATHAN LANDAY: Jonathan Landay with Knight Ridder. I’d like to stay on the same issue. And that has 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.
GEN. MICHAEL HAYDEN: Actually, the Fourth Amendment actually protects all of us against unreasonable search and seizure. That’s what it says.
JONATHAN LANDAY: But the measure is probable cause, I believe.
GEN. MICHAEL HAYDEN: The amendment says unreasonable search and seizure.
JONATHAN LANDAY: But does it not say probable— (or "prob-"; see next discussion item)
GEN. MICHAEL HAYDEN: No.
JONATHAN LANDAY: The court standard, the legal standard—
GEN. MICHAEL HAYDEN: The amendment says unreasonable search and seizure.
JONATHAN LANDAY: The legal standard is probable cause, General. You used the terms just a few minutes ago, "We reasonably believe." And a FISA court, my understanding is, would not give you a warrant if you went before them and say "We reasonably believe." You have to go to the FISA court or the Attorney General has to go to the FISA court and say, "We have probable cause." And so what many people believe, and I would like you to respond to this, is that what you have actually done is crafted a detour around the FISA court by creating a new standard of "reasonably believe" in place of "probable cause," because the FISA court will not give you a warrant based on reasonable belief. You have to show a probable cause. Can you respond to that, please?
GEN. MICHAEL HAYDEN: Sure. I didn’t craft the authorization. I am responding to a lawful order, alright? The Attorney General has averred to the lawfulness of the order. Just to be very clear, okay—and believe me, if there’s any amendment to the Constitution that employees at the National Security Agency is familiar with, it’s the fourth, alright? And it is a reasonableness standard in the Fourth Amendment. So, what you’ve raised to me—and I’m not a lawyer and don’t want to become one—but what you’ve raised to me is, in terms of quoting the Fourth Amendment, is an issue of the Constitution. The constitutional standard is reasonable. And we believe—I am convinced that we’re lawful because what it is we’re doing is reasonable.
The key dispute here concerns what Michael Hayden was saying when he said, "No."
First note that Jonathan Landay never said anything like, "The phrase 'probable cause' is mentioned in the Fourth Amendment. So Michael Hayden's "No" was not denying that.
I think the following is a fair, neutral point of view summary of the above conversation, in terms of understanding the meaning of Michael Hayden's "No". Please comment if you disagree.
JONATHAN LANDAY: I'd like to stay on the issue of whether FISA's warrantless wiretaps decrease the protections of U.S. citizens. The Fourth Amendment specifies that you must have probable cause in order to conduct a constitutional search or seizure.
MICHAEL HAYDEN: The Fourth Amendment protects us against unreasonable search and seizure.
JONATHAN LANDAY: The measure of whether a search or seizure is constitutional is probable cause.
MICHAEL HAYDEN: The measure of whether a search or seizure is constitutional is reasonableness.
JONATHAN LANDAY: But does it not say probable— (interrupted) (The most obvious interpretation of what Jonathan Landay was about to say was something like, "But does it not say probable cause is needed for a search", especially since that is nearly verbatim what he originally said and what Michael Hayden was disputing.)
MICHAEL HAYDEN: No. (The most obvious interpretation is that MH was reaffirming his disagreement with JL's claim that the Fourth Amendment specifies that you must have probable cause in order to conduct a constitutional search or seizure.)
JONATHAN LANDAY: The court standard, the legal standard—
GEN. MICHAEL HAYDEN: The amendment says unreasonable search and seizure.
JONATHAN LANDAY: The legal standard is probable cause, General. You used the terms just a few minutes ago, "We reasonably believe." And a FISA court, my understanding is, would not give you a warrant if you went before them and say "We reasonably believe." You have to go to the FISA court or the Attorney General has to go to the FISA court and say, "We have probable cause."
So both the conversation before and the conversation after Michael's "No" was a dispute over Jonathan's claim that the legal standard needed for a constitutional search was probable cause. Nowhere did Jonathan simply declare "probable cause" is mentioned in the Fourth Amendment. Nowhere did Michael say "probable cause" is not mentioned in the Fourth Amendment.
One might say a nearly-the-same issue is whether Michael Hayden understands the role of "probable cause" in the Fourth Amendment.
To settle that issue, let's turn to the U.S. Supreme Court. "The touchstone of the Fourth Amendment is reasonableness" United States v. Knights 534 U.S. 112 (2001) (retrieved September 7, 2010)
In case anyone is interested, here is the legal procedure for understanding whether a particular search (or seizure) is constitional.
1. Is the search reasonable? If so, the search is constitutional.
2. If not, was a warrant issued? If not, the search is unconstitutional.
3. If so, was the warrant supported by oath or affirmation of probable cause of criminal activity? If not, the search is unconstitutional.
Although this procedure helps clarify the role of "reasonableness", "warrants", and "probable cause", it hardly clarifies whether a particular search is constitutional because of the difficulty (and large body of case law) concerning what is "reasonable" or what is "probable cause".
A separate issue is whether evidence obtained from an unconstitutional search must be excluded from trial (Exclusionary Rule). That issue is also not so clear cut.
DavidForthoffer ( talk) 19:07, 10 September 2010 (UTC)
I dispute the transcription of "JONATHAN LANDAY: But does it not say probable—". Listening carefully and repeatedly to that section leads me to conclude that I can only be sure he said "probab". Furthermore, General Hayden's "No" was talking over Landay right about "pro" or "prob". So the "No" was responding to "prob", even though Landay said slightly more than that. This is an important distinction because it is precisely at the point of this "No" that the controversy rises. My conclusion is that either (a) Jonathan Landay was asserting the whole time that probable cause was needed for a legal search while General Hayden was contradicting that assertion the whole time, or (b) Jonathan Landay started off by asserting that probable cause was needed for a legal search, then said "But does it not say probable" intending to say "But does it not say 'probable cause' someplace in the Fourth Amendment", then reverted back to his original assertion "the legal standard is probable cause", so that General Hayden's "No" was contradicting what people knew that Jonathan Landay was about to say, and that therefore General Hayden was saying that "probable cause" is not in the Fourth Amendment. Frankly, I think (b) is preposterous, even though people on YouTube have vigorously argued for (b).
99.35.222.98 ( talk) 20:40, 3 November 2010 (UTC)
This has been discussed on this Discussion page in the following sections.
Bias in Warrantless surveillance section?
Warrantless surveillance should be moved
May I say...
DavidForthoffer ( talk) 17:49, 10 September 2010 (UTC)
The Wiretaps of domestic calls section of the Article included a footnoted "reference" that simply stated "Hayden, Likely Choice for CIA Chief, Displayed Shaky Grip on 4th Amendment at Press Club". This "reference" neither linked to nor even mentioned a source for that statement. I removed the "reference"
Another reference, to Does Michael Hayden Understand the Fourth Amendment? (retrieved May 10, 2006 and September 7, 2010, but unavailable September 9, 1010), simply said "General Hayden's reading of the Fourth Amendment is correct, and his critics are mistaken". Since that seems to me to be completely UNauthoritative, I removed that reference, too.
DavidForthoffer ( talk) 19:18, 10 September 2010 (UTC)
http://movies.crooksandliars.com/Countdown-nsa-Ha.mov
im no legit wikipedian, but should this be added?
too political for the encyclopedia http://movies.crooksandliars.com/Countdown-nsa-Ha.mov —Preceding unsigned comment added by 70.232.61.136 ( talk • contribs) 03:23, 24 May 2006 (UTC)
I added a small section titled Controversial Video at the appropriate timeline, citing the (already listed) news conference transcript, a YouTube equivalent of the video, and a U.S. Supreme Court statement on the topic.
I see nothing wrong with describing a historical event (such as this news conference) that demonstrates controversy, as long as the event is objectively described and cited, and any assessment of the event is solidly grounded in impeccable sources.
DavidForthoffer ( talk) 12:04, 7 September 2010 (UTC)
If you want to discuss this topic, then in order to consolidate discussion on particular topics, please refer to the Controversial news conference/video; 4th Amendment; warrantless wiretapping disambiguation section to decide whether to continue discussion under the topic 2006 news conference/video: Did MH say that "probable cause" is not in the 4th Amendment or under the topic Warrantless wiretapping. DavidForthoffer ( talk) 17:53, 10 September 2010 (UTC)
I've added General Hayden's award beyond his standard bio material. However, I'm not able to discern what is the lowest award he has in his official photo. It's a foreign decoration awarded by Korea (based on the red-and-blue circle); however, I don't see it on Authorized foreign decorations of the United States military. Looks alot like the Army Good Conduct Medal—Preceding unsigned comment added by Djharrity ( talk • contribs) 15:33, 10 May 2006 (UTC)
How common is it for someone to reach the rank of General in the USAF and not have been a piolt? Are there others? —The preceding unsigned comment was added by 65.92.64.69 ( talk • contribs) 12:01, 8 May 2006 (UTC).
Yep, this fellow Hayden (who was on TV in September 2016 and couldn't even pronounce "prima facie" correctly) was a chairborne chap -- a political general, an office type. — Preceding unsigned comment added by 70.44.233.118 ( talk) 17:05, 21 September 2016 (UTC)
Yes there are others. Do you want to know all that have achieved it? Thats more extensive research. However if you were to research this on the offical site for the U.S. Air Force, you would be able to read about all of them.
The following were listed under the senior leadership link.
LIEUTENANT GENERAL DONALD J. WETEKAM
MAJOR GENERAL JACK L. RIVES
LIEUTENANT GENERAL MICHAEL W. PETERSON
—The preceding
unsigned comment was added by
IDCrewDawg (
talk •
contribs) 15:45, 8 May 2006(UTC).
As of March 31st
http://siadapp.dior.whs.mil/personnel/MILITARY/rg0603.pdf] the USAF has 13 Generals
Below are the 12 that I could find
NON-PILOTS
Michael V. Hayden - Director of National Intelligence
PILOTS
Norton A. Schwart - United States Transportation Command
Lance L. Smith - United States Joint Forces Command
Ronald E. Keys - Air Combat Command
William R. Looney III - Air Education and Training Command
Bruce Carlson - Air Force Materiel Command
Duncan J. McNabb - Air Mobility Command
Paul V. Hester - Pacific Air Forces
William T. Hobbins - U.S. Air Forces in Europe
T. Michael Moseley - Chief of Staff
John D.W. Corley - Vice Chief of Staff
Lance W. Lord - Space Command (retired Ap 1)
WHO IS MISSING FROM THIS LIST? JUST CURIOUS
—Preceding
unsigned comment added by
69.159.42.65 (
talk •
contribs) 9 May 2006
I removed the fake quote from Dr. Strangelove. —Preceding unsigned comment added by 67.165.59.99 ( talk • contribs) 14:24, 8 May 2006 (UTC)
I think this section is trying to prove a political point. Suffice it to say that Hayden believes that NSA searches are "reasonable" thus making 4th amendment non-applicable? And to go on to say that the 4th amendment holds "probable cause" as a standard to meet if a search is "unreasonable"? Thoughts or objections to removing most of the section? GChriss 05:04, 9 May 2006 (UTC)
Hayden was not trying to make a point that the Fourth Amendment didn't apply—but rather he quoted it incorrectly, repeatedly denying that probable cause was included anywhere in the Fourth Amendment. If he had felt that probable cause was nearly impossible to effectively demonstrate to obtain a warrant, and thus the warrantless searches and surveillance were reasonable alternatives under certain circumstances, he would have said so. The fact is that wasn't his argument during the press conference. Given that it was perhaps his most high profile public appearance prior to being nominated for CIA Director, and it does address a controversial program which he oversaw the beginnings of, it should be included. I don't see what political point is being proven (or attempted to be proven), as it doesn't indicate a favorable or unfavorable view of the surveillance program. He said what he said.
[Transcript removed by GChriss 04:02, 14 May 2006 (UTC). See [1]
The text of the Fourth Amendment:
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.—Preceding unsigned comment added by MisterMe ( talk • contribs)
I think the section as it stands is a fairly straightforward account of what happened at the press conference. As for the length, until he was nominated to be CIA this was by far the single aspect of his career that he had gotten the most attention for. I do not believe the POV tag is merited. Nareek 18:27, 9 May 2006 (UTC)
WHY ARE YOU REMOVING THIS FACT ABOVE?—Preceding unsigned comment added by AbrahamLincoln24 ( talk • contribs)
Metarhyme you are right I did miss type telecom and according to. It was late. Your point about the reference to EFF class action suit is worng. Because the pdf talks about how AT&T helped the NSA install monitoring hardware (NarusInsight). But I guess you would have to be a lawer to understand that. So I have updatted and referenced EFFs main page about said case. Furthermore lets just say you dont believe EFF. Take a look at Narus customer page and it clearly shows AT&T. http://narus.com/customers/index.html. If you want to talk about "sentence structure" Please dont write "but have nothing to say about it". —Preceding unsigned comment added by AbrahamLincoln24 ( talk • contribs)
Mitrebox you are wrong. Gen. Hayden has said in the past that he has been specifically involved with over site of domestic spying hardware. In fact he has said its one of his greatest acomplishments. Furthermore this post is toltaly apropreate because Gen. Hayden has said at the Natioinal Press Club and I quote "Let me talk for a few minutes also about what this program is not. It is not a driftnet over Dearborn or Lackawanna or Freemont grabbing conversations that we then sort out by these alleged keyword searches or data-mining tools or other devices that so-called experts keep talking about." witch is a miss statement at best. As you can read the Narus website specifically states that the sole purpose of this hardware is to collect, replay and drop data be it VOIP or IM for the government or ISPs. But I will rewrite the post to state said facts. Also your analogy is wrong. If Rumsfield ever miss stated a fact about US liberties it should be pointed out esecialy if its related to his job or a fact about what a piece of hardware does when it relates to our liberties. AbrahamLincoln24 23:18, 10 May 2006 (UTC)
I edited the discussion above for brevity. MartinGugino 03:51, 13 May 2006 (UTC)
Ok I am going to put some of this back into the article MartinGugino 04:30, 13 May 2006 (UTC)
This is the Fourth Ammendment: "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."
General Hayden is correct; The term "probable cause" is used, but in relation to the issuance of warrants not an unreasonable search or seizure.
==tomf688 Plese explain why this post is miss stated or worng? Explain your self..Don't just delete without explaining.== Also complaints have been sent against you. AbrahamLincoln24
If you want to discuss this topic, then in order to consolidate discussion on particular topics, please refer to the Controversial news conference/video; 4th Amendment; warrantless wiretapping disambiguation section to decide whether to continue discussion under the topic 2006 news conference/video: Did MH say that "probable cause" is not in the 4th Amendment or under the topic Warrantless wiretapping DavidForthoffer ( talk) 17:54, 10 September 2010 (UTC)
This information seems to go into a bit more detail than necessary. Can't the same be accomplished by saying "other members of the military have been appointed as director of the CIA in the past, such as so and so"? -- tomf688 ( talk - email) 00:31, 10 May 2006 (UTC)
"active member of the military" - are the previous directors with military experience people who were active at the time they were appointed? If so, did they keep their rank, or did they resign? Шизомби 17:55, 16 May 2006 (UTC)
Doesn't this guy look *EXACTLY* like Sopranos/Matrix actor Joe Pantoliano?
Wizard1022
05:29, 12 May 2006 (UTC)
I think he looks strikingly similar to
Kurtwood Smith --- Howlader
The discussion of the circumstances that allow searches without warrants is better placed under the topic "the fourth ammendment of the US Constitution" I believe. - —Preceding unsigned comment added by User:MartinGugino ( talk • contribs)
There is some discussion of the topic already at the wiki topic 4th ammendment. Is it ok to edit the discussion above? I can see maybe not - possibly a recap of the positions would be a better approach. What do you all do when the back and forth on the discussion page gets long and tangled? MartinGugino 04:14, 14 May 2006 (UTC)
I don't see why anyone would be interested in Michael Hayden, right now, were it not for the warrantless surveillance issue: he's accused of having ok'd it, when he was at NSA, and his accusers are worried that he'll do the same now at CIA. He told Sen. Feingold during the hearings today that he believes the Article II "presidential war power" trumps any Congressional legislation -- and his view of the legislation is simply that it is archaic and needs bringing up to "21st century" standards. That means more wiretaps, without warrants.
If Hayden did not have views such as this one, he'd be just another DC bureaucrat and wouldn't merit this article: the entire reason why he's here at all is the power he's about to be given and the several controversies surrounding his use of it -- take out the controversies and there'll be no article left, nobody wants to read just a list of medals.
So I believe the warrantless surveillance issue needs rewriting, maybe. But the whole point of NPOV is to include other views, such as Feinstein's yes but also Russ Feingold's, so that the article can't be accused of bias. Excluding all controversy and just listing the guy's medals etc. says "this-is-a-good-guy-we-should-trust-him" -- not very interesting or informative, and not NPOV.
-- Kessler 21:46, 18 May 2006 (UTC)
If you want to discuss this topic, then in order to consolidate discussion on particular topics, please refer to the Controversial news conference/video; 4th Amendment; warrantless wiretapping disambiguation section to decide whether to continue discussion under the topic 2006 news conference/video: Did MH say that "probable cause" is not in the 4th Amendment or under the topic Warrantless wiretapping DavidForthoffer ( talk) 17:56, 10 September 2010 (UTC)
Does anyone else think that "flatly denied" is weaker than "denied" in the sentence: "but flatly denied that it contained the standard of "probable cause"".
I think that "flatly" makes the phrase weaker. "Denied" is calmer, and already shows him to be uninformed on a topic in which he claims to be, and needs to be, an expert. Any other opinions? MartinGugino
Pending other opinions here, I am re-removing "flatly". I do realize that "flatly" is an adverb and describse the maner of the denial. But even an "un-flat" (roundly?) denial would be a serious mistake on his part, since the phrase has been right there to be seen by anyone who cared to see it for so long now. MartinGugino 05:25, 14 May 2006 (UTC)
Ignoring the POV question of "flatly" for a moment, this word choice is bad. It may pass in conversation but in an encyclopedia that aspires to accuracy and clarity it would be better to say something like "strenuously denied" or "consistently denied" et cetera. There is no ambiguity in "strenuously" or "consistently". "Flatly" is more colloquial and therefore less clear. Funkyj 18:33, 6 June 2006 (UTC)
Agreeing with the comment by User:Kwertii, in the article history here, that,
Any article on Hayden which does not address the major constitutional issues, posed by his appointment, misses the point of his appointment entirely: that he is "active-duty career-military" in a civilian-run governmental system, that he worked with statutorily-illegal wiretaps & snooping & database-building while he ran NSA, that he relies upon a major Separation of Powers issue — "Executive Branch vs. Legislative Branch" — for his own justification for same... Without taking positions, on any of these or the several other very-sticky Constitutional problems the Hayden appointment raises, the article simply has to mention them, at least. Bland biography, for this bland bureaucrat, would beg every question which makes him at all significant.
All of this should, and I believe will, go to the US Supreme Court very soon for adjudication -- contradictory as it all is, it can't continue -- and when it does, if Wikipedia is to serve its avowed encylopedia & reference purposes it has to inform users about the controversies surrounding Hayden or which Hayden represents. So, NPOV certainly, I'm for a major effort to pull such controversies out of the hearings etc. detail to get them before readers, here, so that better-informed readers can better-decide. People care more about these things, and need here to be given information about them, more than they need or want to know where this particular guy was born, or whether he was a welder, or how many medals he has. My 25¢, anyway, & emphatically agreeing with User:Kwertii's original comment, like I said...
i.e. I'm suggesting a re-write, or at least a new article section, specifically identifying the above-mentioned Constitutional issues & explaining their relevance here & providing links to further info on them. Without that the article structure -- "Early Life... Intel Career... Military Career... Dates of Rank..." -- in spite of some good substance which has been shoe-horned in here -- still could be a bio on a baseball player, "Early Life... Minors... Majors... Stats..." But this guy only exists, for the rest of us now, because of the Constitutional issues he raises.
-- Kessler 16:49, 4 June 2006 (UTC)
Who voted for confirmation and who voted against confirmation? It would be nice for wikipedia to have a record of this, although it should probably not clutter up this article. Funkyj 18:27, 6 June 2006 (UTC)
"During the question and answer period with the press following his speech, the following exchange occurred between Hayden and Jonathan Landay of Knight Ridder:
QUESTION: 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.
QUESTION: But the --
- HAYDEN: That's what it says.
QUESTION: But the measure is probable cause, I believe.
- HAYDEN: The amendment says unreasonable search and seizure.
QUESTION: But does it not say probable --
- HAYDEN: No. The amendment says --
QUESTION: The court standard, the legal standard --
- HAYDEN: -- unreasonable search and seizure.
This does not keep a neutrel point of view and it's not very importent to have the article. If someone wants to put somthing in about what Michel Hayden thinks about the secert NSA wiretapping I think it should be added in but I don't think this inteview should be in the article.-- Scott3 19:44, 1 July 2006 (UTC)
The controversy over his statements at the press conference did not have to do with his interpretation of the 4th Amendment--Hayden was taking the same position as the rest of the administration that the wiretaps did not need warrants, and he was not singled out for making that argument. What he was singled out for was repeatedly insisting that the amendment does not contain a reference to "probable cause." To follow that with a very lengthy quote defending the use of the "reasonableness" standard rather than a "probable cause" standard is completely off point.
I would note in terms of sources that Editor & Publisher is an specialized source on questions asked by reporters and answers given by sources--which is what is at issue in this controversy, not constitutional interpretation. Nareek 18:57, 13 September 2006 (UTC)
The reporter premised the question with an incorrect assertion that the probable cuase textual provision applied to all searches, which they do not. Hayden does not deal with criminal prosecution, so he understandably corrected her by stating that probable cause was not required for constitutionality. And the Editor & Publisher piece was obviosuly editorializing. If the context is not explained, perhaps the whole section should be removed. NomDeDroit 22:19, 13 September 2006 (UTC)
In the law, when one speaks of the Fourth Amendment, he is speaking of the doctrine as applied by the courts. For example, if someone says there is a right to abortion in the Constitution, they are not saying that there are literally words there that speak of a "right to abortion." The reporter made a factually wrong premise: that for a search to be constitutional, there must be probable cause. This is first year law school error (check out the wikipedia entry on Fourth Amendment), and the relevance of the exchange is therefore minimal (the reporter admitted to not being a lawyer, and the Senate made nothing of the exchange, and no prominent legal scholar backed up the reporter, while many supported Hayden). The exchange adds nothing of substance to the article, particularly when it implies that the reporter was somehow correct. It can't stay in. NomDeDroit 16:29, 14 September 2006 (UTC)
NOte that Hayden later clarified in his Senate confirmation hearing that he was not saying that the fourth amendment doesn't have the words "probable cause" in it, so the quoted exchange is meaningless: FEINSTEIN: Do you believe the Fourth Amendment contains a probable cause standard? HAYDEN: It clearly contains a probable clause standard for warrants to conduct searches. There's the broader phraseology. And I've actually talked to some of my relatives who are in law school at the moment about the construction of the amendment, which talks in a broad sense about reasonableness, and then, after the comma, talks about the probable cause standards for warrants.The approach we've taken at NSA is certainly not discounting at all, ma'am, the probable cause standard and need for probable cause for a warrant. But the standard that is most applicable to the operations of NSA is the standard of reasonableness -- you know, is this reasonable?
If you want to discuss this topic, then in order to consolidate discussion on particular topics, please refer to the Controversial news conference/video; 4th Amendment; warrantless wiretapping disambiguation section to decide whether to continue discussion under the topic 2006 news conference/video: Did MH say that "probable cause" is not in the 4th Amendment or under the topic Warrantless wiretapping DavidForthoffer ( talk) 17:57, 10 September 2010 (UTC)
![]() | This is an archive of past discussions. Do not edit the contents of this page. If you wish to start a new discussion or revive an old one, please do so on the current talk page. |
Archive 1 | Archive 2 |
looks like Red Forman. Jigen III 12:58, 6 May 2006 (UTC)
This discussion page has several sections all about these topics, and some interrelated. I am taking the liberty of adding this new section as a disambiguation talk section, adding a new section for each of the two topics, and adding comments referring discussion to this disambiguation section or the other two topics. Since these topics seem to be the most controversial, I am adding these sections at the beginning of the Discussion page.
In the 2005-2006 timeframe, the government (NSA?) had been conducting extensive warrantless wiretapping. Different people were taking opposing views on whether this was legal (constitutional).
On January 23, 2006, Michael Hayden participated in a news conference, part of which also appears in a video posted several places throughout the web. Different people were taking opposing views on whether he said that "probable cause" was not mentioned in the Fourth Amendment.
These are actually two separate issues. If Michael Hayden said that "probable cause" was not in the Fourth Amendment, that would not affect whether the warrantless wiretapping was legal. Conversely, whether the warrantless wiretapping was legal does not depend on what Michael Hayden said at that news conference.
To clarify treatment of these two separate issues, please let us henceforth discuss these under the following two topics.
Warrantless wiretapping
2006 news conference/video: Did MH say that "probable cause" is not in the 4th Amendment
DavidForthoffer ( talk) 17:49, 10 September 2010 (UTC)
On January 23, 2006, Michael Hayden participated in a news conference. [1], part of which also appear in a video posted several places throughout the web [2] [3]. Different people were taking opposing views on whether he said that "probable cause" was not mentioned in the Fourth Amendment.
This has been discussed on this Discussion page in the following sections.
Video clip of that quote from january
Bias in Warrantless surveillance section?
I'am removing this part of the article
4th Amendment
DavidForthoffer ( talk) 17:49, 10 September 2010 (UTC)
Let's see if we can find an objective answer to this question.
The following is cut-and-paste verbatim from Democracy Now! coverage of the January 23 National Press Club meeting. The discussion preceding this quote was from JAMES BAMFORD and was suggesting that their FISA procedure of warrantless wiretaps was decreasing the protections of U.S. citizens. So JONATHAN LANDAY's "stay on the same issue" clearly was referring to that issue.
JONATHAN LANDAY: Jonathan Landay with Knight Ridder. I’d like to stay on the same issue. And that has 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.
GEN. MICHAEL HAYDEN: Actually, the Fourth Amendment actually protects all of us against unreasonable search and seizure. That’s what it says.
JONATHAN LANDAY: But the measure is probable cause, I believe.
GEN. MICHAEL HAYDEN: The amendment says unreasonable search and seizure.
JONATHAN LANDAY: But does it not say probable— (or "prob-"; see next discussion item)
GEN. MICHAEL HAYDEN: No.
JONATHAN LANDAY: The court standard, the legal standard—
GEN. MICHAEL HAYDEN: The amendment says unreasonable search and seizure.
JONATHAN LANDAY: The legal standard is probable cause, General. You used the terms just a few minutes ago, "We reasonably believe." And a FISA court, my understanding is, would not give you a warrant if you went before them and say "We reasonably believe." You have to go to the FISA court or the Attorney General has to go to the FISA court and say, "We have probable cause." And so what many people believe, and I would like you to respond to this, is that what you have actually done is crafted a detour around the FISA court by creating a new standard of "reasonably believe" in place of "probable cause," because the FISA court will not give you a warrant based on reasonable belief. You have to show a probable cause. Can you respond to that, please?
GEN. MICHAEL HAYDEN: Sure. I didn’t craft the authorization. I am responding to a lawful order, alright? The Attorney General has averred to the lawfulness of the order. Just to be very clear, okay—and believe me, if there’s any amendment to the Constitution that employees at the National Security Agency is familiar with, it’s the fourth, alright? And it is a reasonableness standard in the Fourth Amendment. So, what you’ve raised to me—and I’m not a lawyer and don’t want to become one—but what you’ve raised to me is, in terms of quoting the Fourth Amendment, is an issue of the Constitution. The constitutional standard is reasonable. And we believe—I am convinced that we’re lawful because what it is we’re doing is reasonable.
The key dispute here concerns what Michael Hayden was saying when he said, "No."
First note that Jonathan Landay never said anything like, "The phrase 'probable cause' is mentioned in the Fourth Amendment. So Michael Hayden's "No" was not denying that.
I think the following is a fair, neutral point of view summary of the above conversation, in terms of understanding the meaning of Michael Hayden's "No". Please comment if you disagree.
JONATHAN LANDAY: I'd like to stay on the issue of whether FISA's warrantless wiretaps decrease the protections of U.S. citizens. The Fourth Amendment specifies that you must have probable cause in order to conduct a constitutional search or seizure.
MICHAEL HAYDEN: The Fourth Amendment protects us against unreasonable search and seizure.
JONATHAN LANDAY: The measure of whether a search or seizure is constitutional is probable cause.
MICHAEL HAYDEN: The measure of whether a search or seizure is constitutional is reasonableness.
JONATHAN LANDAY: But does it not say probable— (interrupted) (The most obvious interpretation of what Jonathan Landay was about to say was something like, "But does it not say probable cause is needed for a search", especially since that is nearly verbatim what he originally said and what Michael Hayden was disputing.)
MICHAEL HAYDEN: No. (The most obvious interpretation is that MH was reaffirming his disagreement with JL's claim that the Fourth Amendment specifies that you must have probable cause in order to conduct a constitutional search or seizure.)
JONATHAN LANDAY: The court standard, the legal standard—
GEN. MICHAEL HAYDEN: The amendment says unreasonable search and seizure.
JONATHAN LANDAY: The legal standard is probable cause, General. You used the terms just a few minutes ago, "We reasonably believe." And a FISA court, my understanding is, would not give you a warrant if you went before them and say "We reasonably believe." You have to go to the FISA court or the Attorney General has to go to the FISA court and say, "We have probable cause."
So both the conversation before and the conversation after Michael's "No" was a dispute over Jonathan's claim that the legal standard needed for a constitutional search was probable cause. Nowhere did Jonathan simply declare "probable cause" is mentioned in the Fourth Amendment. Nowhere did Michael say "probable cause" is not mentioned in the Fourth Amendment.
One might say a nearly-the-same issue is whether Michael Hayden understands the role of "probable cause" in the Fourth Amendment.
To settle that issue, let's turn to the U.S. Supreme Court. "The touchstone of the Fourth Amendment is reasonableness" United States v. Knights 534 U.S. 112 (2001) (retrieved September 7, 2010)
In case anyone is interested, here is the legal procedure for understanding whether a particular search (or seizure) is constitional.
1. Is the search reasonable? If so, the search is constitutional.
2. If not, was a warrant issued? If not, the search is unconstitutional.
3. If so, was the warrant supported by oath or affirmation of probable cause of criminal activity? If not, the search is unconstitutional.
Although this procedure helps clarify the role of "reasonableness", "warrants", and "probable cause", it hardly clarifies whether a particular search is constitutional because of the difficulty (and large body of case law) concerning what is "reasonable" or what is "probable cause".
A separate issue is whether evidence obtained from an unconstitutional search must be excluded from trial (Exclusionary Rule). That issue is also not so clear cut.
DavidForthoffer ( talk) 19:07, 10 September 2010 (UTC)
I dispute the transcription of "JONATHAN LANDAY: But does it not say probable—". Listening carefully and repeatedly to that section leads me to conclude that I can only be sure he said "probab". Furthermore, General Hayden's "No" was talking over Landay right about "pro" or "prob". So the "No" was responding to "prob", even though Landay said slightly more than that. This is an important distinction because it is precisely at the point of this "No" that the controversy rises. My conclusion is that either (a) Jonathan Landay was asserting the whole time that probable cause was needed for a legal search while General Hayden was contradicting that assertion the whole time, or (b) Jonathan Landay started off by asserting that probable cause was needed for a legal search, then said "But does it not say probable" intending to say "But does it not say 'probable cause' someplace in the Fourth Amendment", then reverted back to his original assertion "the legal standard is probable cause", so that General Hayden's "No" was contradicting what people knew that Jonathan Landay was about to say, and that therefore General Hayden was saying that "probable cause" is not in the Fourth Amendment. Frankly, I think (b) is preposterous, even though people on YouTube have vigorously argued for (b).
99.35.222.98 ( talk) 20:40, 3 November 2010 (UTC)
This has been discussed on this Discussion page in the following sections.
Bias in Warrantless surveillance section?
Warrantless surveillance should be moved
May I say...
DavidForthoffer ( talk) 17:49, 10 September 2010 (UTC)
The Wiretaps of domestic calls section of the Article included a footnoted "reference" that simply stated "Hayden, Likely Choice for CIA Chief, Displayed Shaky Grip on 4th Amendment at Press Club". This "reference" neither linked to nor even mentioned a source for that statement. I removed the "reference"
Another reference, to Does Michael Hayden Understand the Fourth Amendment? (retrieved May 10, 2006 and September 7, 2010, but unavailable September 9, 1010), simply said "General Hayden's reading of the Fourth Amendment is correct, and his critics are mistaken". Since that seems to me to be completely UNauthoritative, I removed that reference, too.
DavidForthoffer ( talk) 19:18, 10 September 2010 (UTC)
http://movies.crooksandliars.com/Countdown-nsa-Ha.mov
im no legit wikipedian, but should this be added?
too political for the encyclopedia http://movies.crooksandliars.com/Countdown-nsa-Ha.mov —Preceding unsigned comment added by 70.232.61.136 ( talk • contribs) 03:23, 24 May 2006 (UTC)
I added a small section titled Controversial Video at the appropriate timeline, citing the (already listed) news conference transcript, a YouTube equivalent of the video, and a U.S. Supreme Court statement on the topic.
I see nothing wrong with describing a historical event (such as this news conference) that demonstrates controversy, as long as the event is objectively described and cited, and any assessment of the event is solidly grounded in impeccable sources.
DavidForthoffer ( talk) 12:04, 7 September 2010 (UTC)
If you want to discuss this topic, then in order to consolidate discussion on particular topics, please refer to the Controversial news conference/video; 4th Amendment; warrantless wiretapping disambiguation section to decide whether to continue discussion under the topic 2006 news conference/video: Did MH say that "probable cause" is not in the 4th Amendment or under the topic Warrantless wiretapping. DavidForthoffer ( talk) 17:53, 10 September 2010 (UTC)
I've added General Hayden's award beyond his standard bio material. However, I'm not able to discern what is the lowest award he has in his official photo. It's a foreign decoration awarded by Korea (based on the red-and-blue circle); however, I don't see it on Authorized foreign decorations of the United States military. Looks alot like the Army Good Conduct Medal—Preceding unsigned comment added by Djharrity ( talk • contribs) 15:33, 10 May 2006 (UTC)
How common is it for someone to reach the rank of General in the USAF and not have been a piolt? Are there others? —The preceding unsigned comment was added by 65.92.64.69 ( talk • contribs) 12:01, 8 May 2006 (UTC).
Yep, this fellow Hayden (who was on TV in September 2016 and couldn't even pronounce "prima facie" correctly) was a chairborne chap -- a political general, an office type. — Preceding unsigned comment added by 70.44.233.118 ( talk) 17:05, 21 September 2016 (UTC)
Yes there are others. Do you want to know all that have achieved it? Thats more extensive research. However if you were to research this on the offical site for the U.S. Air Force, you would be able to read about all of them.
The following were listed under the senior leadership link.
LIEUTENANT GENERAL DONALD J. WETEKAM
MAJOR GENERAL JACK L. RIVES
LIEUTENANT GENERAL MICHAEL W. PETERSON
—The preceding
unsigned comment was added by
IDCrewDawg (
talk •
contribs) 15:45, 8 May 2006(UTC).
As of March 31st
http://siadapp.dior.whs.mil/personnel/MILITARY/rg0603.pdf] the USAF has 13 Generals
Below are the 12 that I could find
NON-PILOTS
Michael V. Hayden - Director of National Intelligence
PILOTS
Norton A. Schwart - United States Transportation Command
Lance L. Smith - United States Joint Forces Command
Ronald E. Keys - Air Combat Command
William R. Looney III - Air Education and Training Command
Bruce Carlson - Air Force Materiel Command
Duncan J. McNabb - Air Mobility Command
Paul V. Hester - Pacific Air Forces
William T. Hobbins - U.S. Air Forces in Europe
T. Michael Moseley - Chief of Staff
John D.W. Corley - Vice Chief of Staff
Lance W. Lord - Space Command (retired Ap 1)
WHO IS MISSING FROM THIS LIST? JUST CURIOUS
—Preceding
unsigned comment added by
69.159.42.65 (
talk •
contribs) 9 May 2006
I removed the fake quote from Dr. Strangelove. —Preceding unsigned comment added by 67.165.59.99 ( talk • contribs) 14:24, 8 May 2006 (UTC)
I think this section is trying to prove a political point. Suffice it to say that Hayden believes that NSA searches are "reasonable" thus making 4th amendment non-applicable? And to go on to say that the 4th amendment holds "probable cause" as a standard to meet if a search is "unreasonable"? Thoughts or objections to removing most of the section? GChriss 05:04, 9 May 2006 (UTC)
Hayden was not trying to make a point that the Fourth Amendment didn't apply—but rather he quoted it incorrectly, repeatedly denying that probable cause was included anywhere in the Fourth Amendment. If he had felt that probable cause was nearly impossible to effectively demonstrate to obtain a warrant, and thus the warrantless searches and surveillance were reasonable alternatives under certain circumstances, he would have said so. The fact is that wasn't his argument during the press conference. Given that it was perhaps his most high profile public appearance prior to being nominated for CIA Director, and it does address a controversial program which he oversaw the beginnings of, it should be included. I don't see what political point is being proven (or attempted to be proven), as it doesn't indicate a favorable or unfavorable view of the surveillance program. He said what he said.
[Transcript removed by GChriss 04:02, 14 May 2006 (UTC). See [1]
The text of the Fourth Amendment:
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.—Preceding unsigned comment added by MisterMe ( talk • contribs)
I think the section as it stands is a fairly straightforward account of what happened at the press conference. As for the length, until he was nominated to be CIA this was by far the single aspect of his career that he had gotten the most attention for. I do not believe the POV tag is merited. Nareek 18:27, 9 May 2006 (UTC)
WHY ARE YOU REMOVING THIS FACT ABOVE?—Preceding unsigned comment added by AbrahamLincoln24 ( talk • contribs)
Metarhyme you are right I did miss type telecom and according to. It was late. Your point about the reference to EFF class action suit is worng. Because the pdf talks about how AT&T helped the NSA install monitoring hardware (NarusInsight). But I guess you would have to be a lawer to understand that. So I have updatted and referenced EFFs main page about said case. Furthermore lets just say you dont believe EFF. Take a look at Narus customer page and it clearly shows AT&T. http://narus.com/customers/index.html. If you want to talk about "sentence structure" Please dont write "but have nothing to say about it". —Preceding unsigned comment added by AbrahamLincoln24 ( talk • contribs)
Mitrebox you are wrong. Gen. Hayden has said in the past that he has been specifically involved with over site of domestic spying hardware. In fact he has said its one of his greatest acomplishments. Furthermore this post is toltaly apropreate because Gen. Hayden has said at the Natioinal Press Club and I quote "Let me talk for a few minutes also about what this program is not. It is not a driftnet over Dearborn or Lackawanna or Freemont grabbing conversations that we then sort out by these alleged keyword searches or data-mining tools or other devices that so-called experts keep talking about." witch is a miss statement at best. As you can read the Narus website specifically states that the sole purpose of this hardware is to collect, replay and drop data be it VOIP or IM for the government or ISPs. But I will rewrite the post to state said facts. Also your analogy is wrong. If Rumsfield ever miss stated a fact about US liberties it should be pointed out esecialy if its related to his job or a fact about what a piece of hardware does when it relates to our liberties. AbrahamLincoln24 23:18, 10 May 2006 (UTC)
I edited the discussion above for brevity. MartinGugino 03:51, 13 May 2006 (UTC)
Ok I am going to put some of this back into the article MartinGugino 04:30, 13 May 2006 (UTC)
This is the Fourth Ammendment: "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."
General Hayden is correct; The term "probable cause" is used, but in relation to the issuance of warrants not an unreasonable search or seizure.
==tomf688 Plese explain why this post is miss stated or worng? Explain your self..Don't just delete without explaining.== Also complaints have been sent against you. AbrahamLincoln24
If you want to discuss this topic, then in order to consolidate discussion on particular topics, please refer to the Controversial news conference/video; 4th Amendment; warrantless wiretapping disambiguation section to decide whether to continue discussion under the topic 2006 news conference/video: Did MH say that "probable cause" is not in the 4th Amendment or under the topic Warrantless wiretapping DavidForthoffer ( talk) 17:54, 10 September 2010 (UTC)
This information seems to go into a bit more detail than necessary. Can't the same be accomplished by saying "other members of the military have been appointed as director of the CIA in the past, such as so and so"? -- tomf688 ( talk - email) 00:31, 10 May 2006 (UTC)
"active member of the military" - are the previous directors with military experience people who were active at the time they were appointed? If so, did they keep their rank, or did they resign? Шизомби 17:55, 16 May 2006 (UTC)
Doesn't this guy look *EXACTLY* like Sopranos/Matrix actor Joe Pantoliano?
Wizard1022
05:29, 12 May 2006 (UTC)
I think he looks strikingly similar to
Kurtwood Smith --- Howlader
The discussion of the circumstances that allow searches without warrants is better placed under the topic "the fourth ammendment of the US Constitution" I believe. - —Preceding unsigned comment added by User:MartinGugino ( talk • contribs)
There is some discussion of the topic already at the wiki topic 4th ammendment. Is it ok to edit the discussion above? I can see maybe not - possibly a recap of the positions would be a better approach. What do you all do when the back and forth on the discussion page gets long and tangled? MartinGugino 04:14, 14 May 2006 (UTC)
I don't see why anyone would be interested in Michael Hayden, right now, were it not for the warrantless surveillance issue: he's accused of having ok'd it, when he was at NSA, and his accusers are worried that he'll do the same now at CIA. He told Sen. Feingold during the hearings today that he believes the Article II "presidential war power" trumps any Congressional legislation -- and his view of the legislation is simply that it is archaic and needs bringing up to "21st century" standards. That means more wiretaps, without warrants.
If Hayden did not have views such as this one, he'd be just another DC bureaucrat and wouldn't merit this article: the entire reason why he's here at all is the power he's about to be given and the several controversies surrounding his use of it -- take out the controversies and there'll be no article left, nobody wants to read just a list of medals.
So I believe the warrantless surveillance issue needs rewriting, maybe. But the whole point of NPOV is to include other views, such as Feinstein's yes but also Russ Feingold's, so that the article can't be accused of bias. Excluding all controversy and just listing the guy's medals etc. says "this-is-a-good-guy-we-should-trust-him" -- not very interesting or informative, and not NPOV.
-- Kessler 21:46, 18 May 2006 (UTC)
If you want to discuss this topic, then in order to consolidate discussion on particular topics, please refer to the Controversial news conference/video; 4th Amendment; warrantless wiretapping disambiguation section to decide whether to continue discussion under the topic 2006 news conference/video: Did MH say that "probable cause" is not in the 4th Amendment or under the topic Warrantless wiretapping DavidForthoffer ( talk) 17:56, 10 September 2010 (UTC)
Does anyone else think that "flatly denied" is weaker than "denied" in the sentence: "but flatly denied that it contained the standard of "probable cause"".
I think that "flatly" makes the phrase weaker. "Denied" is calmer, and already shows him to be uninformed on a topic in which he claims to be, and needs to be, an expert. Any other opinions? MartinGugino
Pending other opinions here, I am re-removing "flatly". I do realize that "flatly" is an adverb and describse the maner of the denial. But even an "un-flat" (roundly?) denial would be a serious mistake on his part, since the phrase has been right there to be seen by anyone who cared to see it for so long now. MartinGugino 05:25, 14 May 2006 (UTC)
Ignoring the POV question of "flatly" for a moment, this word choice is bad. It may pass in conversation but in an encyclopedia that aspires to accuracy and clarity it would be better to say something like "strenuously denied" or "consistently denied" et cetera. There is no ambiguity in "strenuously" or "consistently". "Flatly" is more colloquial and therefore less clear. Funkyj 18:33, 6 June 2006 (UTC)
Agreeing with the comment by User:Kwertii, in the article history here, that,
Any article on Hayden which does not address the major constitutional issues, posed by his appointment, misses the point of his appointment entirely: that he is "active-duty career-military" in a civilian-run governmental system, that he worked with statutorily-illegal wiretaps & snooping & database-building while he ran NSA, that he relies upon a major Separation of Powers issue — "Executive Branch vs. Legislative Branch" — for his own justification for same... Without taking positions, on any of these or the several other very-sticky Constitutional problems the Hayden appointment raises, the article simply has to mention them, at least. Bland biography, for this bland bureaucrat, would beg every question which makes him at all significant.
All of this should, and I believe will, go to the US Supreme Court very soon for adjudication -- contradictory as it all is, it can't continue -- and when it does, if Wikipedia is to serve its avowed encylopedia & reference purposes it has to inform users about the controversies surrounding Hayden or which Hayden represents. So, NPOV certainly, I'm for a major effort to pull such controversies out of the hearings etc. detail to get them before readers, here, so that better-informed readers can better-decide. People care more about these things, and need here to be given information about them, more than they need or want to know where this particular guy was born, or whether he was a welder, or how many medals he has. My 25¢, anyway, & emphatically agreeing with User:Kwertii's original comment, like I said...
i.e. I'm suggesting a re-write, or at least a new article section, specifically identifying the above-mentioned Constitutional issues & explaining their relevance here & providing links to further info on them. Without that the article structure -- "Early Life... Intel Career... Military Career... Dates of Rank..." -- in spite of some good substance which has been shoe-horned in here -- still could be a bio on a baseball player, "Early Life... Minors... Majors... Stats..." But this guy only exists, for the rest of us now, because of the Constitutional issues he raises.
-- Kessler 16:49, 4 June 2006 (UTC)
Who voted for confirmation and who voted against confirmation? It would be nice for wikipedia to have a record of this, although it should probably not clutter up this article. Funkyj 18:27, 6 June 2006 (UTC)
"During the question and answer period with the press following his speech, the following exchange occurred between Hayden and Jonathan Landay of Knight Ridder:
QUESTION: 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.
QUESTION: But the --
- HAYDEN: That's what it says.
QUESTION: But the measure is probable cause, I believe.
- HAYDEN: The amendment says unreasonable search and seizure.
QUESTION: But does it not say probable --
- HAYDEN: No. The amendment says --
QUESTION: The court standard, the legal standard --
- HAYDEN: -- unreasonable search and seizure.
This does not keep a neutrel point of view and it's not very importent to have the article. If someone wants to put somthing in about what Michel Hayden thinks about the secert NSA wiretapping I think it should be added in but I don't think this inteview should be in the article.-- Scott3 19:44, 1 July 2006 (UTC)
The controversy over his statements at the press conference did not have to do with his interpretation of the 4th Amendment--Hayden was taking the same position as the rest of the administration that the wiretaps did not need warrants, and he was not singled out for making that argument. What he was singled out for was repeatedly insisting that the amendment does not contain a reference to "probable cause." To follow that with a very lengthy quote defending the use of the "reasonableness" standard rather than a "probable cause" standard is completely off point.
I would note in terms of sources that Editor & Publisher is an specialized source on questions asked by reporters and answers given by sources--which is what is at issue in this controversy, not constitutional interpretation. Nareek 18:57, 13 September 2006 (UTC)
The reporter premised the question with an incorrect assertion that the probable cuase textual provision applied to all searches, which they do not. Hayden does not deal with criminal prosecution, so he understandably corrected her by stating that probable cause was not required for constitutionality. And the Editor & Publisher piece was obviosuly editorializing. If the context is not explained, perhaps the whole section should be removed. NomDeDroit 22:19, 13 September 2006 (UTC)
In the law, when one speaks of the Fourth Amendment, he is speaking of the doctrine as applied by the courts. For example, if someone says there is a right to abortion in the Constitution, they are not saying that there are literally words there that speak of a "right to abortion." The reporter made a factually wrong premise: that for a search to be constitutional, there must be probable cause. This is first year law school error (check out the wikipedia entry on Fourth Amendment), and the relevance of the exchange is therefore minimal (the reporter admitted to not being a lawyer, and the Senate made nothing of the exchange, and no prominent legal scholar backed up the reporter, while many supported Hayden). The exchange adds nothing of substance to the article, particularly when it implies that the reporter was somehow correct. It can't stay in. NomDeDroit 16:29, 14 September 2006 (UTC)
NOte that Hayden later clarified in his Senate confirmation hearing that he was not saying that the fourth amendment doesn't have the words "probable cause" in it, so the quoted exchange is meaningless: FEINSTEIN: Do you believe the Fourth Amendment contains a probable cause standard? HAYDEN: It clearly contains a probable clause standard for warrants to conduct searches. There's the broader phraseology. And I've actually talked to some of my relatives who are in law school at the moment about the construction of the amendment, which talks in a broad sense about reasonableness, and then, after the comma, talks about the probable cause standards for warrants.The approach we've taken at NSA is certainly not discounting at all, ma'am, the probable cause standard and need for probable cause for a warrant. But the standard that is most applicable to the operations of NSA is the standard of reasonableness -- you know, is this reasonable?
If you want to discuss this topic, then in order to consolidate discussion on particular topics, please refer to the Controversial news conference/video; 4th Amendment; warrantless wiretapping disambiguation section to decide whether to continue discussion under the topic 2006 news conference/video: Did MH say that "probable cause" is not in the 4th Amendment or under the topic Warrantless wiretapping DavidForthoffer ( talk) 17:57, 10 September 2010 (UTC)