Personally, I have a bit of a problem with a director of the CIA that doesn't know the Fourth Amendment, but then I'm funny about civil rights that way. The following exchange between Hayden and Knight Ridder's Jonathan Landay should fill us all with a great sense of unease (via Just Citizens):
QUESTION: Jonathan Landay with Knight Ridder. 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 --
GEN. HAYDEN: That's what it says.
QUESTION: But the measure is probable cause, I believe.
GEN. HAYDEN: The amendment says unreasonable search and seizure.
QUESTION: But does it not say probable --
GEN. HAYDEN: No. The amendment says --
QUESTION: The court standard, the legal standard --
GEN. HAYDEN: -- unreasonable search and seizure.
QUESTION: The legal standard is probable cause, General. ... I'd like you to respond to this -- is that what you've 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 probable cause. Could you respond to that, please?
GEN. HAYDEN: Sure. I didn't craft the authorization. I am responding to a lawful order. All right? The attorney general has averred to the lawfulness of the order. Just to be very clear -- and believe me, 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 so what you've raised to me -- and I'm not a lawyer, and don't want to become one -- 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 are lawful because what it is we're doing is reasonable.
If only the bolded part were true in Hayden's case. Maybe it's just a lapse in memory. Or maybe it's yet another Bush administration shill setting up to defend the President rather than the Constitution. Seems like that sort of thing's been going around lately, like a deadly virus...
The whole issue of the NSA domestic spying program is certain to come up again in Hayden's confirmation hearing and the conservative spin is that Bush actually wants the debate. See, the conventional wisdom among fearful Bush supporters is that this program is so well loved by the American people that it will be a political winner for the administration. For conservative hacks in the media, such as the professor on Wisconsin public radio this morning, there really is no substantive debate to be had on this topic. The American people want the government to spy on Al-Qaida and its contacts here, so Democrats like Russ Feingold have no leg to stand on for their opposition to the program. Once again, Bush's supporters are completely missing the point.
To be very painfully clear: no one is saying that the NSA should not be allowed to spy on domestic terrorist agents communicating with terrorist groups overseas. Feingold's not saying that, the Democratic party at large is not saying that, I'm certainly not saying that; in fact, not one liberal voice that I can find anywhere is saying the NSA should not be allowed to spy on terrorists. Yet this is the mendacious spin perpetuated by Republicans day in and day out on this issue. They're trying their damnedest to spin this issue into an attack on liberals for not wanting the country to be safe from terrorism. If anyone bothers to think about the issue for even a moment, they would realize this is an absurd line of thought. We liberals want our families to be safe as much as any conservative. However, we are engaged enough to realize that while terrorism is a danger, it's not the only danger our country faces. It may not even be the biggest.
The problem with the NSA domestic spying program is that Bush has chosen to engage in it without a warrant, which is required by both the Foreign Intelligence Surveillance Act and the Fourth Amendment (Editor's Note: For my regular readers, I know this is a review. Bear with me...). The President does not have the authority to ignore the law or the Constitution, even if he feels the law is inadequate or Unconstitutional. If he believes the law is broken, then Bush must take his concerns to Congress to change the law. If he believes it is Unconstitutional, then Bush must take his concerns to the Supreme Court to get their interpretation and possible striking down of the law. He has no other recourse but to follow the law until either Congress changes it or the courts annul it. The President's responsibility to uphold and be bound by the law is a basic feature of our three branches of government, designed to prevent the President from assuming authoritarian powers. Sadly, with the Rubber Stamp Republican Congress out to lunch for the past 6 years, Bush has been able to push his way into further and further expansions of executive power.
My outrage with the actions (or lack thereof) of Congress hasn't cooled, though I'm not as vocal about it as I once was. The current Congress is broken beyond repair and I believe the American people will demonstrate to the Republican party in November just what happens when incompetence and malfeasance have free reign in Washington. My concern about this is more the reactions of everyday Americans, particularly those who support the Bush administration. I've done a little unscientific research and the results are astounding: 100% of the self-identified Republican supporters I talked to supported the President's spying program without warrants, essentially saying either that they personally were doing nothing wrong so they didn't mind being spied upon or, worse, that "9/11 changed everything" and Americans need to give up some of their freedoms in this post-9/11 world. My small sample's views are consistent with what I'm hearing and reading in the rightwing media as well.
The first of these two justifications plays off a common belief of most people: the "it can't happen to me" delusion. These conservatives believe Bush (and all Republicans) are just inherently good people who can be trusted with as much power as they desire in spite of a toxic river of Republican scandals flowing out of Washington lately. The second justification is another step along the road to fascism and should scare the hell out of any American contemplating such a thing. Once we're willing to give up our Bill of Rights and Constitution for the illusion of safety, then the American experiment has officially failed. Al-Qaida will have succeeded beyond its wildest dreams in crippling the United States and demonstrating that our liberal democracy really was too fragile to live. All because many conservative Americans lack the courage to stand up and face the price of freedom, as they demand our soldiers do. Shameful!
To those conservatives who really believe that our rights should be stripped away from us in a "time of war" such as this, that truly believe that the Fourth Amendment can be altered or suspended by the President with no judicial or legislative oversight, I ask the following question: How would you feel if Bush found some other Amendments to ignore? I realize that most conservatives have no use for many of the Amendments; the First, for example. They would have no problem with establishing a state religion (Christianity, of course) or subverting the press (Fox News, anyone?). But what about that most cherished of all conservative ideals; that one right that every conservative will stake their very lives upon? What about Amendment Number Two?
Suppose there is another terrorist attack in America by Al-Qaida, using an array of weapons purchased with false identification around the country. Say a shooting spree in a prominent public area tragically occurs. Suppose then that President Bush, his fervent desire to protect the country shining from his righteous brow, declared that, in the interests of national security, the right to own a firearm was going to have to be curtailed. Of course, it would never be done so blatantly; after all, Bush never actually announced that he was intending to ignore the Fourth Amendment. It was coded in words devised to speak of safety and protection for Americans from the shadowy terrorist threat. But suppose that, instead of a Terrorist Surveillance Program, as Bush calls his domestic spying program, the President decided on a Terrorist Disarmament Program. NSA agents could covertly enter the homes of Americans suspected of communicating with Al-Qaida (or, really, any Americans because, like the current program, Bush would allow no oversight) and seize their firearms and ownership identification cards. I wonder what the Radical Right would think when they woke up disarmed in the name of protection from terrorism?
Let's not be coy any longer because we know exactly what would happen. Conservatives would take to the streets in droves. It would make the immigration protests look like a 24-hour Christmas sale at Toys-R-Us. The truth is that anyone supporting the President's authority to break the law and ignore the Constitution is engaging in the worst form of hypocrisy. They're all too willing to give up rights they don't particularly value (or, in reality, don't realize exactly how much they value) but would be "storming the Bastille" at the thought of giving up the rights they do value. Any American unwilling to stand up for each and every right guaranteed by our Constitution is nothing but a base coward, willing to throw away the most valuable thing America has, it's democratic ideals, in exchange for the illusion of safety. And make no mistake: it is an illusion. The gravest threats any nation faces always come from within and a President that doesn't respect the law is a dire threat indeed.
As a final note on Hayden, I think the concern about his being an active member of the military is much ado about nothing, though I recognize the inherent danger to our republic when the military exerts too much control in the government. However, sadly, I think we're long past the point of too much military power in the United States, and harping about Hayden is far too little, too late. As a conciliatory gesture, it would be nice to see him resign from the Air Force, but I don't see that happening.
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