Detect and Prevent

Lieutenant General Michael V. Hayden, USAF, former Director of the National Security Agency (NSA), argued that the warrantless spying was necessary to "detect and prevent" potential terrorist acts. He also explained that the NSA is executing a Presidential order deemed to be legal by the US Department of Justice.

The Foreign Intelligence Surveillance Act (FISA) Court has approved 18,742 applications and denied just four between 1979 and 2004. If the communications being intercepted by the NSA is "focused" and "targeted," why is it necessary for the NSA to sidestep obtaining a warrant from FISA for eavesdropping on US citizens?

The answer implied by Hayden, and US Attorney General Gonzales, is that they need to be expeditious. The President can order a search 72 hours prior to obtaining a FISA warrant if urgency is the issue. A more convincing answer seems to be that the President didn't believe he could obtain a warrant from the FISA court, because he could not prove "probable cause," and would thus violate the 4th amendment of the US Constitution.

This was exposed in an exchange between Jonathan Landay with Knight Ridder and General Hayden on January 23, 2006 at the National Press Club. Addressing General Hayden, Landay contended, "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."

Hayden insisted that the burden in the 4th amendment was not "probable cause," but rather a prohibition against "unreasonable search and seizure." Hayden stated, "... if there's any amendment to the Constitution that employees of the National Security Agency are familiar with, it's the Fourth. And it is a reasonableness standard in the Fourth Amendment. And... 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." See the Full Exchange

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."