Miers and Hayden: The Soft Bigotry of Low Expectations

"The spirit of the No Child Left Behind Act basically says society has a deep obligation to challenge the soft bigotry of low expectations, that we believe every child can learn, and therefore, we believe it makes sense to determine whether or not every child is learning, and if not, there ought to be extra help so that no child in our society is left behind."George W. Bush, 4/26/2006

I'm ashamed to confess that, like too many Americans, I am imperfectly familiar with the substance and content of the Constitution of the United States, despite the fact that I , together with George Bush's 300 million other employers, am referenced in the document's famous opening phrase.

But although we, the people, have perhaps the strongest motivation for familiarity with this document, it seems to me we must also hold our famous and powerful employees, and their employees beneath them, to this same high standard. To do otherwise would be to be guilty of the odious mindset described by the title of this post.

Air Force Gen. Michael Hayden, George Bush's choice to lead the Central Intelligence Agency, represents at least the second candidate put forward by Mr. Bush for high office who appears, shockingly, to be almost as unfamiliar with the content of the U.S. Constitution as I confess to be.
The first was Harriet Miers, Mr. Bush's first choice to replace Sandra Day O'Connor on the U.S. Supreme Court, before he was forced to settle for his second choice, Samuel Alito. One of Ms. Miers' famously brief and shallow responses to a Senate Judiciary Committee questionnaire revealed her lack of familiarity with the Equal Protection Clause of the 14th amendment of the Constitution.

I'm only a citizen – not (like Ms. Miers) a nominee to the highest court of the land described by the leader of the free world as the finest legal mind in the country and his first choice for the position – but according to Constitutional experts from both sides of the political spectrum this was just sad:

Meanwhile, several constitutional law scholars said they were surprised and puzzled by Miers's response to the committee's request for information on cases she has handled dealing with constitutional issues. In describing one matter on the Dallas City Council, Miers referred to "the proportional representation requirement of the Equal Protection Clause" as it relates to the Voting Rights Act.

"There is no proportional representation requirement in the Equal Protection Clause," said Cass R. Sunstein, a constitutional law professor at the University of Chicago. He and several other scholars said it appeared that Miers was confusing proportional representation -- which typically deals with ethnic groups having members on elected bodies -- with the one-man, one-vote Supreme Court ruling that requires, for example, legislative districts to have equal populations.

Well, we don't have Ms. Miers to kick around any more. This brings us to Gen. Hayden. There are several reasons to object to his selection as CIA chief, most notable and important of which is his enthusiastic spearheading and defense of Mr. Bush's illegal warrentless wiretapping program. But his lack of familiarity with another famous section of the U.S. Constitution, the Bill of Rights, is, I think, also worth mentioning.

Gen. Hayden's ignorance concerns the 4th Amendment, which not coincidentally describes the fundamental Constitutional right that the Bush Administration's warrentless wiretapping crime spree flaunts – the protection against unreasonable search and seizure.
First, the full text of the 4th Amendment:

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.

Now, Gen. Hayden's understanding of same, as revealed in January of this year in an exchange with a Knight Ridder reporter. Please read the whole exchange carefully:

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. You used the terms just a few minutes ago, "We reasonably believe." And a FISA court, my understanding is, would not give you a warrant if you went before them and say "we reasonably believe"; you have to go to the FISA court, or the attorney general has to go to the FISA court and say, "we have probable cause."

And so what many people believe -- and 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.

And here again, for the added clarity that sometimes comes with repetition, is the 14th Amendment, but with emphasis added:

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.

I don't want to belabor the point, but it seems to me that the man charged by Mr. Bush with deliberately and systematically violating the laws of the United States as ultimately laid down in the 4th Amendment should, at least, have a solidly based understanding of the law he has sworn to defile.