Amendment IV
Searches and Seizures
"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 Fourth Amendment
President Bush, in issuing an executive order allowing the National Security Agency to conduct warrantless wire-taps, has cut the fourth amendment in half. In a statement made at the National Press Club on January 23rd, the Principal Deputy Director of National Intelligence, General Michael V. Hayden, stated that the only part of the fourth amendment that applies to the NSA's wire-tapping program is the 'unreasonable searches and seizures' clause. He said, "...if there's any amendment to the Constitution that employees of the National Security Agency are familiar with, it's the Fourth.... The constitutional standard is 'reasonable.'" And he is right. The national press has been reporting this statement as a blunder by Gen. Hayden, because the Fourth amendment also states, "...and no Warrants shall issue, but upon probable cause...". Apparently the media thinks that Gen. Hayden doesn't know the Constitution, but it is very clear that his statement is true. Because President Bush issued a directive allowing the NSA to conduct surveillance without warrants, the 'probable cause' clause no longer applies. The NSA only has to provide probable cause if it is applying for a FISA warrant, something which it is not longer obligated to do.
The President is now allowing the NSA to sidestep half of the Fourth amendment giving them the right to forego warrants for surveillance. In 2002, Sen. Mike DeWine (R-Ohio), a member of the Senate Select Committee on Intelligence, offered an amendment (s. 2659) that would have lowered the FISA standard to be met for authorizing surveillance of non-U.S. citizens, from 'probable cause' to 'reasonable suspicion'. This amendment was not passed, and the administration has not yet given a good reason as to why it personally hasn't pushed for an amendment to the FISA act. It is interesting to note that Sen. DeWine is a member of the Select Committee on Intelligence as this is the group of Senators that is briefed by General Hayden on NSA's surveillance program, yet it's not clear whether the President asked Sen. DeWine to offer his amendment.
Until further information is available, it seems that, legally speaking, the President is on solid ground in this matter. Since the NSA is not seeking warrants it does not have to provide probable cause, and since the President himself authorized this, the NSA has nothing to worry about either.
