Tuesday, January 24, 2006

Katz Out of the Bag 

Atrios and mcjoan at Dkos have ridiculed General Hayden for saying, “The constitutional standard is ‘reasonable’” when the plain text of the Fourth Amendment requires “probable cause.” Just to be clear, the General isn’t making a mere silly statement here because he isn’t familiar with the text of the Fourth Amendment. No, it’s almost certain that he’s correctly parroting the Bush Administration’s legal view on the matter.

General Hayden’s argument, such as it is, goes back to Katz v. US (1967). According to FindLaw, the Executive Branch then asserted the power to wiretap against domestic subversion and against foreign intelligence operations. First, the Executive Branch based its authority on a theory of “inherent” presidential power. Then, in the Supreme Court it withdrew to the argument that such surveillance was a “reasonable” search and seizure and therefore valid under the Fourth Amendment. The Supreme Court unanimously upheld that compliance with the warrant provisions of the Fourth Amendment was required at least in cases of domestic subversive investigations. However, Justice White, concurring, sought to preserve for a future case the possibility that in “national security cases” electronic surveillance upon the authorization of the President or the Attorney General could be permissible without prior judicial approval. Justices Douglas and Brennan, concurring, rejected that suggestion.

Therefore, it looks like the Bush Administration has revived the “reasonableness” argument that the Supreme Court rejected in Katz when it was applied to domestic subversion situations. The Administration can properly claim that this argument was not rejected in the foreign intelligence context because the Court did not squarely consider that issue. So, General Hayden’s comments, I think, are properly understood to be an accurate reflection of the Bush Administration’s legal position.


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