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WHO'S IN CHARGE HERE?
Magpie is a former journalist, attempted historian [No, you can't ask how her thesis is going], and full-time corvid of the lesbian persuasion. She keeps herself in birdseed by writing those bad computer manuals that you toss out without bothering to read them. She also blogs too much when she's not on deadline, both here and at Pacific Views.

Magpie roosts in Portland, Oregon, where she annoys her housemates (as well as her cats Medea, Whiskers, and Jane Doe) by attempting to play Irish music on the fiddle and concertina.

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Saturday, May 6, 2006

Out of the frying pan, into the fire.

That's the first thing that came to my mind when I read that the likely replacement for resigning CIA head Porter Goss is Air Force General Michael Hayden. Washington sources have told the AP, Time, and others that Hayden's appointment will be announced by Dubya on Monday. (Given that the prez often has a replacement picked out before a resignation is announced, this would seem to confirm suspicions that Goss didn't resign, but was fired.)


Hayden, Dubya, Negroponte

Gen. Michael Hayden (left) with Dubya and John Negroponte after Hayden & Negroponte were sworn in for the National Intelligence jobs on 18 May 2005. [Photo: Paul Morse/White House]

Why does a CIA headed by Hayden make me so nervous?

To begin with, Hayden is currently Principal Deputy Director of National Intelligence under John Negroponte — the guy who made right-wing death squads a way of life in the 1980s in Central America. You don't go working for a guy who has blood on his hands unless you might be comfortable putting yourself in the same position, I'd suggest. But lest you accuse me of making Hayden guilty by association, let me point out that, before he took his the job as Negroponte's deputy, Hayden headed the National Security Agency for five years. During that time, he was not only in charge of the NSA's secret wiretapping of people in the US — he was one of the main designers of that illegal program.

As you'll have to admit, Hayden heading up the CIA is pretty bad news for anyone who's concerned about civil liberties, the right to privacy, and the Constitution. But it gets even worse.

Consider this exchange between Hayden and Knight Ridder reporter Jonathan Landay at a press conference that Hayden gave on January 23:

Landay: 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.

Hayden: Actually, the Fourth Amendment actually protects all of us against unreasonable search and seizure. That's what it says.

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

Hayden: The amendment says unreasonable search and seizure.

Landay: But does it not say probable --

Hayden: No.

Landay: The court standard, the legal standard --

Hayden: The amendment says unreasonable search and seizure.

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?

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.

As you read, Hayden repeatedly disagreed with Landay's contention that the Fourth Amendment requires probable cause in order for a search warrant to be issued. According to Hayden, that amendment only protects people from unreasonable searches and seizures.

The obvious way to settle the argument is to look at 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.

As you can see, Landay was right about probable cause.

And Hayden — the man who is about to head the CIA — has no clue as to what the Constitution requires of law enforcement and federal agents before they can legally conduct searches and seizures, electronically or otherwise. Hayden not only ran an illegal wiretapping operation most of the time he headed the NSA, and staunchly defended that wiretapping while Negroponte's deputy at National Intelligence, but he apparently has so little knowledge of — let alone respect for — the Constitution that he was clueless as to how illegal that wiretapping was.

If that doesn't scare you, too, I'm really scared.

| | Posted by Magpie at 12:01 AM | Get permalink




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