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Does Michael Hayden Understand the Fourth Amendment?

Over at National Review Online, Adam White defends the new nominee to lead the CIA, General Michael Hayden, for his statements about the meaning of the Fourth Amendment. The statements have apparently become an important issue in the debate over Hayden’s nomination.

Here’s what happened.  In the early period of the NSA wiretapping controversy, General Hayden had an exchange with a reporter at the National Press Club about the meaning of the Fourth Amendment. A reporter insisted that the Fourth Amendment requires probable cause. General Hayden, who is not a lawyer, insisted that the Fourth Amendment requires reasonableness. Opponents of the Hayden nomination are now using the exchange to suggest that General Hayden doesn’t understand the Constitution and is therefore unqualified to lead the CIA.

In his essay, Adam argues that Hayden’s view is correct. Adam is quite right, as is General Hayden. The Fourth Amendment requires that warrants cannot issue without probable cause, but it does not impose some kind of universal probable cause requirement. As the Supreme Court has stressed repeatedly, the requirement of the Fourth Amendment is that searches and seizures must be reasonable. See, e.g., United States v. Knights, 534 U.S. 112, 118 (2001) (”The touchstone of the Fourth Amendment is reasonableness”). Often that requirement is satisfied based on a showing of probable cause, but then often it is not. Courts have relied particularly heavily on the general reasonableness framework in the national security context, which presumably explains why General Hayden, formerly the head of the NSA, would focus on it in his remarks.

To be clear, there may be reasons to oppose General Hayden’s nomination. But his understanding of the Fourth Amendment is not one of them.

Thanks to Howard for the link.