Former CIA & NSA Boss: September 11th Gave Me Permission To Reinterpret The 4th Amendment
from the i-guess-the-terrorists-did-win dept
Michael Hayden, the former CIA and NSA director, has revealed what most people already suspected -- to him, the Constitution is a document that he can rewrite based on his personal beliefs at any particular time, as noted by Conor Friedersdorf at the Atlantic. Specifically, he admits that after September 11th, 2001, he was able to totally reinterpret the 4th Amendment to mean something entirely different:In a speech at Washington and Lee University, Michael Hayden, a former head of both the CIA and NSA, opined on signals intelligence under the Constitution, arguing that what the 4th Amendment forbids changed after September 11, 2001. He noted that "unreasonable search and seizure," is prohibited under the Constitution, but cast it as a living document, with "reasonableness" determined by "the totality of circumstances in which we find ourselves in history."While it's true that the 4th Amendment does ban "unreasonable search and seizure," it seems like quite an interpretation to argue that "reasonableness" depends on what some third party does to us. That seems morally dangerous -- and it seems like a direct admission to terrorists that if they want to eviscerate the rights of Americans, they just need to keep on attacking, because folks like Hayden will just interpret it to mean that they should take away more and more rights from Americans.
He explained that as the NSA's leader, tactics he found unreasonable on September 10, 2001 struck him as reasonable the next day, after roughly 3,000 were killed. "I actually started to do different things," he said. "And I didn't need to ask 'mother, may I' from the Congress or the president or anyone else. It was within my charter, but in terms of the mature judgment about what's reasonable and what's not reasonable, the death of 3,000 countrymen kind of took me in a direction over here, perfectly within my authority, but a different place than the one in which I was located before the attacks took place. So if we're going to draw this line I think we have to understand that it's kind of a movable feast here."
Then there was this other rather stunning admission. Hayden admits that the NSA wants to listen to anyone it finds "interesting," not just those they think are doing something bad:
"I am not a law enforcement officer. I don't suspect anybody. I am simply going out there to retrieve information that helps keep my countrymen free and safe. This is not about guilt. In fact, let me be really clear. NSA doesn't just listen to bad people. NSA listens to interesting people. People who are communicating information."This is a rather refreshing admission -- as most of those who normally defend the surveillance state like to pretend that they're only listening to "bad" people. They trot out the "if you're not doing anything wrong, you have nothing to fear" argument all the time. Even Hayden himself has argued along those lines in the past. Yet here he is, more accurately saying that "if you're boring, you have nothing to fear" but "if we think you're interesting, you should be very afraid." And "interesting" is subject to a lot more vague interpretations than "reasonableness."
You can see his whole speech below, and while it's nice that he's finally admitting how malleable his own morals are, it's depressing that he ever had the power to use his flexible morals to spy on all of us -- and then did so.
Thank you for reading this Techdirt post. With so many things competing for everyone’s attention these days, we really appreciate you giving us your time. We work hard every day to put quality content out there for our community.
Techdirt is one of the few remaining truly independent media outlets. We do not have a giant corporation behind us, and we rely heavily on our community to support us, in an age when advertisers are increasingly uninterested in sponsoring small, independent sites — especially a site like ours that is unwilling to pull punches in its reporting and analysis.
While other websites have resorted to paywalls, registration requirements, and increasingly annoying/intrusive advertising, we have always kept Techdirt open and available to anyone. But in order to continue doing so, we need your support. We offer a variety of ways for our readers to support us, from direct donations to special subscriptions and cool merchandise — and every little bit helps. Thank you.
–The Techdirt Team
Filed Under: 4th amendment, cia, michael hayden, nsa, privacy, september 11, surveillance
Reader Comments
Subscribe: RSS
View by: Time | Thread
Totally reasonable. Might as well as wipe the Arabians from the Earth because TERRORISM, no? Because of 3k killed it's fine to go ahead and invade countries causing many more thousands to die. Because 3k is it reasonable to stomp justice and due process and fuck up the lives of millions of innocents. Because 3k it is reasonable to harass people in the airport. You can play that with drugs too.
Because some extremist actions more extremism is reasonable. Awesome.
[ link to this | view in chronology ]
Re:
What Hayden is actually saying here is "I am personally terrified, therefore you don't get to have your constitutional rights."
[ link to this | view in chronology ]
Re: Re:
It's not like terrorism is new or anything.
[ link to this | view in chronology ]
Re: Re: Re:
seeing as how the revo war was about ultimately establishing said constitution, maybe that was a tad difficult to violate prospectively...
also, the harsh truth is, that 'our' (sic) gummint *has* violated and abandoned the constitutional protections on more than a few occasions, and certainly under the rubric of 'war' ! ! !
*supposedly*, we 'learn' each time we do that to be -you know- eternally vigilant not to allow such transgressions to occur...
...until they do...
[ link to this | view in chronology ]
Re: Re:
[ link to this | view in chronology ]
Re: Re:
Exactly. The 9/11 deaths were equivalent to just 26 days worth of US road deaths in 2001, or 33 days worth of 2012 numbers. Where's the War on Car Crashes? Where are the Constitution-quashing laws put in place to prevent this far worse ongoing tragedy!
[ link to this | view in chronology ]
Re:
Where does "reasonable" end?
[ link to this | view in chronology ]
Re: Re:
Therefore, there is only one directions thing can go.
[ link to this | view in chronology ]
Slimeball
[ link to this | view in chronology ]
Re: Slimeball
Methinks it is time for the convening of Public Tribunals, wherein, those who direct these atrocities may be tried (in absentia most likely) by the public they refuse to serve, and where the evidence of their crimes may be lain out for public inspection and analysis, so that these self-serving men and women may become know to all citizens as the parasites they are.
Ya, I know - dream on dude.
---
[ link to this | view in chronology ]
Have you seen the bumper sticker??
I'm sorry, but I've reread the bill of rights and there's nothing in there about "circumstances".
You're full of shit, please let us know when we can schedule your shitectomy where we will temporarily remove your head, turn you upside down and drain the shit from your body.
Special Note: We've never successfully reattached a head after a shitectomy, so you're shit out of luck I'm afraid, but the world will be better off without you and your illegal and treasonous thinking in this matter.
[ link to this | view in chronology ]
Re: Have you seen the bumper sticker??
And yes, it sadly smacks of the ultimate treason, yet there are few able to recognize it for what it is.
Officials now regularly shit upon the constitution and gleefully taunt the breaching of their Oaths of Office... and we keep re-electing them!
[ link to this | view in chronology ]
Re: Re: Have you seen the bumper sticker??
[ link to this | view in chronology ]
The stupid it burns...
NOT ONLY does the 4th BAN it, it goes further to describe what is NOT unreasonable.
...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.
describes just exactly the ONLY REASONABLE method the Government has at its disposal to search for and seize property of ANY KIND!
The government has maliciously twisted this perfect English to mean something else, while 'The People' and 'Education' purchase it in vain and ignorance!
[ link to this | view in chronology ]
Re: The stupid it burns...
Today americans are too difficult to distinguish from everybody else and voila: Sir Hayden argues that his permission to do anything overtrumphs the constitution when he says it does. Combined with the secrecy, that reverse evidentiary requirement and an assumption of everybody being non-american unless proven otherwise you are essentially designated a foreigner in your own land and Hayden can ignore the constitution. Now, combine that with the use of "enemy combatant" to circumvent international law, your protection against NSA is merely theoretical...
[ link to this | view in chronology ]
Re: Re: The stupid it burns...
[ link to this | view in chronology ]
They also admited that they killed jfk and landed on the moon, twice. They also came out as the "masterminds" behind the french attack but for some reason noone believed them this time...
[ link to this | view in chronology ]
Astounding Doublethink/Newspeak
Can somebody please tell me where in the Constitution there is a 'right to be free from harm?'
[ link to this | view in chronology ]
Re: Astounding Doublethink/Newspeak
[ link to this | view in chronology ]
Re: Astounding Doublethink/Newspeak
and how long before this become :" free and safe from people who do not think exactly as I think"... making all of us his enemy.
[ link to this | view in chronology ]
Re: Astounding Doublethink/Newspeak
You see, Hayden only sees those men and women he works with and those who sign over the tax payer's money to his accounts and those people he drinks and parties with as "his countrymen".
The rest of you fucks are all part of the Evil Adversary Horde and he hates your guts because he fears that you might some day rise up and take away his and "his countrymen's" freedom to do as they damn well pleases at your expense.
Remember - "cute re-interpretations".
---
[ link to this | view in chronology ]
I don't disagree with Hayden's description of the Constitution as a living document--I think it is. What I disagree with profoundly is his view that he gets to decide when and how it changes and adapts. To the contrary, it is absolutely clear that such adaptations must be made by the three branches of government, and must be able to be checked all the way up to the Supreme Court, which the NSA's insulation from all but the FISA court has guaranteed is impossible.
That is a violation of principles so fundamental that I am literally at a loss to see how Hayden can even have said these things in public.
[ link to this | view in chronology ]
Re:
How exactly have you come to that conclusion? Does the ink on it take new forms over time? It is living, only in so much as there is a defined process for new ammendments. What is already written cannot, does not change. If you don't like it, get it changed, but you cannot just "redefine" it anytime you like.
[ link to this | view in chronology ]
Re: Re:
the reason is simple: both the meanings of words and the facts of the world change faster than we can possibly keep the document updated. When the US Constitution was written, the word "men" in "All men are created equal" literally meant white men who owned property. Today, we hear that phrase very differently. We even tend to think it means "women." When we get to important across-the-board rights like due process, I know of nobody, not even Scalia, who insists that it applies only to "men." Yet that is what the text says, if we take it in its most literal sense.
The second amendment refers to "arms," but we today have "arms" of a variety the framers could never have imagined. We could amend the constitution every time a new weapon is developed, or we could recognize that law adapts and changes over time. Even the NRA does not argue that the 2nd amendment gives citizens the right to bear nuclear weapons, but there has never been a specific amendment to legislate about that.
I'm not making this up. It is widely-established theory of law. It is NOT widely established that single executive branch members get to take this power unto themselves. It requires the entire populace and its governmental representatives. It is not in any way an "anything goes" rule. It requires careful attention to previous cases, previous interpretations, legal histories, and much more. And it is done in public, not behind the closed doors of NSA.
[ link to this | view in chronology ]
Re: Re: Re:
We can figure out very much of what was meant by reading the writings of the framers and signers. This is the part lots of people like to ignore so they can pretend it says something it doesn't.
but we today have "arms" of a variety the framers could never have imagined.
Yes, and so does the government. That is why citizens should be allowed to own AR 15s and such. The government has tanks, bombs and nukes. Of course the anti-gunners would like to say the citizens shouldn't have any guns, just a "militia". This is exactly what my first point makes a there are many who ignore the writings around the constitution.
As for the speed of change of this world, I would argue it doesn't change very fast at all. Sure technology chnages, but the things you do with those technologies are fully covered by laws already on the books. For example, using a drone with a video camera as a peeping tom instrument is easily covered by peeping tom laws. Why do we need new laws just for drones? So yes, things change, but people don't and anything a person can do wrongly to another is already covered.
[ link to this | view in chronology ]
Re: Re: Re: Re:
I don't disagree for a second that this is an important part of jurisprudence. It just isn't the whole story.
One of the main reasons for this is that the framers and signers themselves did not agree about the meaning of the document--despite working together on The Federalist Papers, for example, Hamilton and Madison very quickly diverged in their understandings of many parts of the document. The states diverged even more. This, too, is abundantly clear in the record. There is no way to read "objectively" without interpreting.
The "we" I mentioned w/r/t second amendment meant everyone, including government. You do seem to be arguing that the second amendment gives individuals the right to bear nuclear arms. There is lots of reason in the history of constitutional interpretation to suggest that this is false, and its potential for huge destruction is beyond obvious. There is almost nobody who argues that this is the right interpretation of the second amendment. Are you really arguing that until and unless an amendment prohibiting the bearing of nuclear arms is passed, we just have to let people have nuclear weapons, even if the price is global thermonuclear war?
[ link to this | view in chronology ]
Re: Re: Re: Re: Re:
[ link to this | view in chronology ]
Re: Re: Re: Re:
[ link to this | view in chronology ]
Re: Re: Re: Re: Re:
Or the 5th, yes there are people in jail over that too!
In fact, I think the only Amendment not being broken is the 3rd... but I am probably wrong there too, I just do not know it yet.
[ link to this | view in chronology ]
Re: Re: Re: Re: Re: Re:
[ link to this | view in chronology ]
Third Amendment broken all the time by the NSA
"No Soldier shall, in time of peace be quartered in any house, without the consent of the Owner, nor in time of war, but in a manner to be prescribed by law"
[ link to this | view in chronology ]
Re: Third Amendment broken all the time by the NSA
Software is a soldier?
[ link to this | view in chronology ]
Re: Re: Third Amendment broken all the time by the NSA
[ link to this | view in chronology ]
Re: Re: Re: Third Amendment broken all the time by the NSA
IE no longer puts the name and url in the header spaces, so I occasionally just hit submit before id entry.
I'm switching to Chrome soon.
[ link to this | view in chronology ]
Re: Re: Re: Third Amendment broken all the time by the NSA
Some spies are, but by no means all.
[ link to this | view in chronology ]
Re: Re: Re: Re: Third Amendment broken all the time by the NSA
While obviously not designated as a military agents on their pay stubs, I would think that even standard corporate espionage agents would be considered to be "soldiers" in the sense that they assist in the corporate effort in the never ending War on Competition.
Personally, I consider even the lowest of war-workers - the remote controllers of drone assassin bombs - as soldiers.
Anyone who does any sort of war work is a soldier IMO, right down to the girl in the war-general's office who makes his coffee.
---
[ link to this | view in chronology ]
Re: Re: Re:
[ link to this | view in chronology ]
Re: Re:
The changes in government that happened after 9/11 were the result of:
A) Congress passing laws as a kneejerk reaction, and not vetting the current processes whereby information is collected like in the executive orders
B) the executive branch letting its people run wild and not checking itself or honestly reporting what was happening
C) the judicial branch operating in secret and not caring about the breach of the 4th amendment.
To quote a line from Serenity, "You know, in certain older civilized cultures, when men failed as entirely as you have, they would throw themselves on their swords."
I wish the people responsible for breaking the 4th amendment would come out and take responsibility for their actions. Instead we have smug idiots like Hayden that gloat about how they got away with what they did.
[ link to this | view in chronology ]
Impunity...
[ link to this | view in chronology ]
Re: Impunity...
[ link to this | view in chronology ]
[ link to this | view in chronology ]
Re:
[ link to this | view in chronology ]
Re: Re:
Those in Politics have found a very good way to avoid this... drive a wedge between the ideologies so that things like "we have to vote this party in or we get the douche from the other party" which leads people to hold their noses while picking the lesser of two evils when they vote, but still a vote for evil none the less.
If we worried more about making sure the corrupt were ran out of office on rails, we would find that we still have time and opportunity to get the candidates with the ideologies we want into office.
[ link to this | view in chronology ]
Re:
[ link to this | view in chronology ]
Re: Re:
One of the real reasons why every government loves war is that it is the one time that the men and women that compose a government can do all sorts of illegal things in secret - (usually to make boat loads of money) - and have the legal justification on their side if any of them gets caught.
"For the War Effort!!"
[ link to this | view in chronology ]
Signage
[ link to this | view in chronology ]
Re: Signage
Unless you know what moot court is, in which case it indicates he's probably in a law school.
[ link to this | view in chronology ]
Lost!!!!
They ignore it whenever it gets in their way and use it whenever it helps them get what they want.
Sadly the police have become so powerful and more like a badly trained army than an enforcement against true crimes. So even the ability to protest has been removed and any protest is propagandized so well that even the people who support the protests in America start laughing at the people taking part.
[ link to this | view in chronology ]
Power corrupts
This is what the new authoritarian regimes will look like. Highly motivated individuals pursuing their own interpretations of morality ostensibly for the greater good.
Michael Hayden's actions were tyrannical, plain and simple. There are many others like him in power and without the sunlight of oversight and transparency they will continue to make decisions without the consent of the governed.
[ link to this | view in chronology ]
The NSA are the terrorists
[ link to this | view in chronology ]
[ link to this | view in chronology ]
[ link to this | view in chronology ]
Re:
That is a straw man argument. Nobody is saying we should do nothing about terrorism. However, we should fight it without destroying our liberties.
[ link to this | view in chronology ]
Re:
In which case, as far as you're concerned anyway, congrats, you just handed them victory. By cowing down, by buckling under fear and becoming accepting of the idea of sacrificing real rights and freedoms for imaginary 'safety', you have done exactly what they wanted you to.
So again, congrats, people like you are the reason terrorism is able to succeed, it would fail completely if people simply had the courage to stand up and say 'No, I will not be afraid, and I will not sacrifice my rights and my principles for a phantom feeling of safety. Even if it costs me or those I care about our lives, freedom is worth the risk.'
[ link to this | view in chronology ]
Re: Re:
[ link to this | view in chronology ]
Re: Re: Re:
[ link to this | view in chronology ]
Re: Re: Re: Re:
[ link to this | view in chronology ]
Re: Re: Re: Re: Re:
The problem with emergency measures is they have a way of becoming permanent.
For example: http://www.usatoday.com/story/news/politics/2014/10/22/president-obama-states-of-emergency/16851775/
[ link to this | view in chronology ]
Re: Re: Re: Re: Re: Re:
[ link to this | view in chronology ]
Re: Re: Re: Re: Re:
But creating countless haystacks for real threats to hide in, making in-time threat prevention all but impossible is not helping. Undercutting, on a permanent basis(because the number of times a government agency will willingly give up power on it's own could be counted on a single hand), the rights and privacy of the people, is not helping. Destroying and weakening digital security, in order to make their jobs easier, is not helping.
They have done worlds of harm, and as far as I can tell, no good that wasn't overshadowed by the bad with their actions, so those 'emergency measures' need to go, as all they are doing is making things worse.
[ link to this | view in chronology ]
Re: Re:
FREEEDOM
[ link to this | view in chronology ]
Re: Re: Re:
Not all of us feel like hiding under the bed from the big bad terrorist, and letting our rights be undermined by government agencies who think they know better just what's 'best' for us, and are so sure of how right they are that they do everything they can to hide their actions both from the public itself, and the people who are supposed to provide a check to their actions.
[ link to this | view in chronology ]
That is exactly what bin Laden expected. From his last public interview:
[ link to this | view in chronology ]
Sooooo....finger-crossing and/or deliberate misunderstanding is an accepted part of taking an oath now?
[ link to this | view in chronology ]
the psychology of Hayden
[ link to this | view in chronology ]
[ link to this | view in chronology ]
[ link to this | view in chronology ]
[ link to this | view in chronology ]
[ link to this | view in chronology ]
Re:
To make sure they don't visit any ICC signatory countries? Because it's not as though they'll be extradited.
[ link to this | view in chronology ]
Dangerous Man
Not only does Hayden leave out the half of the 4th Amendment that requires warrants, probable cause supported by oath or affirmation, particularly describing the place to be searched, and the persons or things to be seized, he then pivots to a theme that essentially says none of that matters, nothing more than a good tale to get you to think he's a thoughtful man.
He's made it clear that we're talking about, in his own words, "gathering data or information or things, from the citizens of the republic", not some terrorist in Yemen, and then grants himself an exception to the Constitution on "foreign intelligence" grounds:
I think he's a dangerous man that believes in his own exceptionality.
[ link to this | view in chronology ]
So how does this not make him an enemy of the United States? I don't recall ever seeing any asterisks in the Constitution indicating these "constitutional rights" were conditional and that Michael Hayden reserved the ability to remove them at will. Was there a constitutional convention that I missed?
Michael Hayden: Traitor.
What can I say, if I were the sole witness to his execution, I would conveniently be looking the other way.
[ link to this | view in chronology ]
Re:
But I tend to forget those who enforce the laws with military might tend to make certain the laws do apply to themselves
[ link to this | view in chronology ]
If the Constitution was firm, there would be no need for the Supreme Court.
It is not up to law enforcement or the NSA to figure out what is legal or not, that is for the law makers and the courts. That is why the White House has lawyers for. Don't blame this guy, blame his bosses.
[ link to this | view in chronology ]
[ link to this | view in chronology ]
These folks dont understand the concept that if they dont follow it, or in this case uphold it, then why should others follow the laws, their essentially openining a can of worms without realising, which makes em stupid or ignorant.......or they think their above the law in the sense that they can break it and will enforce everyone else to follow the laws, thats bordering on the tyranical.........this alone, amongst other things, wil start to make people scrutinize their representatives more closely.......which i fear is the real target of terrorist law authority......bypassing human rights "legally"......and trying to justfy terrorist authority actions in the public opinion sphere.......if yiu think about it, you take the terrorist threat away, our respective governments would start looking like those they demonize very quickly
..i dont think they like the fact that the internet does a better job at representation, i think what it boils down to, is that they feel their positions threatened by this..........and i think putting down ANY resistance to their possition is their ultimate goal.....now normally, i might agree with that if facing violent atrocities, but i get the feeling EVERYBODY and EVERYTHING will be surpressed, and THAT i put above ANY threat
Free Speech
[ link to this | view in chronology ]
[ link to this | view in chronology ]
Re:
[ link to this | view in chronology ]
Treason!
Which explains using every imaginable tactic to prevent any legal challenge to there actions! And to para-phrase 'If you make any peaceful/legal challenge impossible, you make a violent challenge inevitable."
[ link to this | view in chronology ]
Confirmation of suspicion .01 (confirmed)
==========================
There is absolutely no technical difference between:
(a.) secretly tossing the original constitution out altogether and then replacing it with a new document composed of similar, but very different language, and
(b.) secretly re-interpreting the meaning of the words that compose the constitution.
After 9/11, the Constitution of the United States was indeed secretly eliminated when new meanings for the words therein were created, completely without public input or public knowledge, by the men in power who were about to wage a secret war, against an un-named enemy, using a set of special secret laws that would make any atrocity they might perform, legally acceptable.
Using these new rules, they managed to rewrite and re-interpret the law to make the unfettered exploitation and surveillance of the American Public completely legal under the banner of the War on Drugs, and to wage war on various Non-Christian, Non-White nations, and destroy their social infrastructure, and steal their resources, under the banner of the War On Terror.
=================================
Confirmation of suspicion .02 (pending)
The Adversary
=============
It is highly likely that a large part of the secret changes to the meanings of words in the constitution deals with the justification of declaring a secret war, in secret session, upon a secret enemy, including civilian populations, after a verified sneak attack by Known or Unknown Civilian Terrorists, on US soil.
If I was a megalomaniac millionaire with visions of godhood and the tax-payer's purse at my finger tips, that would be how I would do it.
---
[ link to this | view in chronology ]
NSA and GCHQ are scum
[ link to this | view in chronology ]
[ link to this | view in chronology ]