Rewriting the Fourth Amendment


Bush’s nominee for head of the CIA, Gen. Michael Hayden, at a press conference, offered an interpretation of the Fourth Amendment to the Constitution that removes the requirement of “probable cause” from that important guarantee of freedom.

Asked by Jonathan Landay of Knight-Ridder about the Fourth Amendment’s standard of “probable cause” for issuance of a warrant for a police search, Gen. Hayden disputed the standard.

“No, actually — the Fourth Amendment actually protects all of us against unreasonable search and seizure.” Hayden said, trying to correct Landay.

“But it does say probable” Landay tried to interject.

“No, the amendment says unreasonable search and seizure,” snapped Hayden.

Now the problem here is that the General, who was running the National Security Agency as it has been operating a secret program, just disclosed by USA Today, that monitors the phone calling records of virtually all phone customers of AT&T, Bell South and Verizon, is selectively quoting from the Fourth Amendment.

In fact, what the Fourth Amendment says is:

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.

The trick here is that under the Foreign Intelligence Surveillance Act (FISA), the NSA is required to obtain a court warrant for any domestic surveillance. What Bush has done is to authorize secret monitoring of Americans communications without a warrant. At the same time, once he was caught in the act, both Bush and Gen. Hayden have claimed that they are following the same strict guidelines as if they were going to court for a warrant.

Clearly, however, the standard for a warrant, as laid out by the Founding Fathers, is “probably cause,” not the much looser “reasonable” that Hayden asserted to Landay at the press conference.

We Americans, and the members of Congress who are being asked to consider Hayden’s fitness to serve as CIA director, need to challenge this spook’s sleight of hand.

Clearly there is no “probable cause” for monitoring all the phone records of the entire customer base of three of the nation’s largest phone service providers.

That’s why Hayden tried so hard to deny that the standard for monitoring people’s communications is “probable cause.”

The president and his subordinates have been found out violating the Constitution in a serious way.

If this is not an impeachable act, I don’t know what is.

DAVE LINDORFF is the author of Killing Time: an Investigation into the Death Row Case of Mumia Abu-Jamal. His new book of CounterPunch columns titled “This Can’t be Happening!” is published by Common Courage Press. Lindorff’s new book, “The Case for Impeachment“,
co-authored by Barbara Olshansky, is due out May 1.

He can be reached at:



CounterPunch contributor DAVE LINDORFF is a producer along with MARK MITTEN on a forthcoming feature-length documentary film on the life of Ted Hall and his wife of 51 years, Joan Hall. A Participant Film, “A Compassionate Spy” is directed by STEVE JAMES and will be released in theaters this coming summer. Lindorff has finished a book on Ted Hall titled “A Spy for No Country,” to be published this Fall by Prometheus Press.