Michael Hayden's Hollow Constitution

Via TomDispatch : I've seen nothing that caught the liberties-constraining mentality of the national security state better than these four paragraphs from Conor Friedersdorf of the Atlantic based on a recent speech by former NSA (and CIA) head Michael Hayden.

What Hayden says seems so commonsensical to him and it should chill the rest of us to the bone. Don't miss Friedersdorf's fourth paragraph which translates Hayden into our English. Tom

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."

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."

I think I understand.

The Bill of Rights may guarantee certain limits on government today. But if there is a terrorist attack tomorrow, a bureaucrat within the national security state may decide, without asking permission from any elected official, that the people are actually owed less protections than before. The more innocent people that terrorists succeed in murdering, the less our own government is limited by the Constitution. With every attack that the government fails to prevent it gains new powers.

Who was affected by growing surveillance power? "Glenn Greenwald and Laura Poitras are fond of accusing the NSA of suspicion-less surveillance. That's almost a nonsense comment for somebody with my background," Hayden said. "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."

He feels that Edward Snowden has distorted the debate about gathering that information and when it constitutes an unreasonable search under the Constitution. Observers looking at his leaks are like people who began watching a murder mystery in the third act. He urged his audience to reassess the leaks in context.

For most of the life of NSA, y'all were pretty enthusiastic about our intercepting the communications of the Soviet Union. And one of our targets in the Soviet Union was SRF, Soviet Strategic Rocket Forces. The guys with the ICBMs. And they used to transmit their orders out of SRF headquarters in Moscow through microwave shots up over the Urals to Soviet ICMBM fields in the Far East. And we were all over that network. We were intercepting communications 24 hours a day, looking, I must admit, for words of interest. Like launch. There isn't a civil libertarian alive who gave a damn about that.

The 21st Century equivalent of those Soviet SRF signals on that isolated microwave network jumping over the Ural mountains are proliferator, drug trafficker, terrorist communications, pretty much existing in emails, in a global telecommunications grid, coexisting with your Gmail and you Hotmail.

And so the fundament I want to give you here is, if you want these guys to do what they did for you during the 1970s and 1980s, they gotta be on networks where your stuff is.

And that's just the way it is.

So if I understand the argument correctly, to keep apprised of a possible nuclear war with the Soviet Union, an event that could've precipitated a literal doomsday for much of humanity, the NSA spied on a few military posts in the USSR, and no one cared. Today, America's enemies use the same platforms to communicate as U.S. citizens. So the NSA must be given access to all platforms we use to let them do their jobs.

There is a grain of truth here. Terrorists have been known to use consumer phone networks and popular web tools to communicate. On the other hand, neither terrorists nor drug traffickers (which existed during the Cold War too) are comparable to an expansionist Communist empire with the ability to start a nuclear war. And while most civil libertarians remain perfectly content to let the NSA spy on the people with the capacity to launch ICBMs at America, "the guys with ICBMs still aren't communicating "words of interest" like "launch" on Hotmail.

In Hayden's view, "Privacy is the line we continuously negotiate between ourselves as unique creatures of God and ourselves as social animals. In the first category we have a right to keep things to ourselves. And in the second category we have a responsibility to reveal things about ourselves to the community for the greater good."

What goes in which category? Hayden's actions suggest that Americans have a responsibility to reveal all the telephone numbers that we dial and that dial us, aspects of our Web activity, and James Clapper only knows what else for the greater good—and that government officials have a right to keep to themselves sweeping changes in how surveillance affects Americans, rendering the electorate too ignorant to protest via elected representatives, per our republican system.

Hayden's entire speech can be viewed here:

If you reach the part where he claims that NSA surveillance attained the "Madisonian trifecta" of approval by all three branches of government, don't be fooled.

Attentive viewers will also notice that at the beginning of the speech he treats the NSA's dragnet surveillance on millions of innocent Americans as a response to the September 11, 2001 terrorist attacks—whereas near the end of the speech, he characterizes such practices as a pragmatic, pre-9/11 response to technological trends. To me, the distinction hardly matters. As I see it, the Fourth Amendment prohibits unreasonable searches and seizures, and mass surveillance always qualifies. I'd argue that this makes my Constitution more resilient to terrorism than his. More

 

 

 

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Noam Chomsky: Why Obama made Edward Snowden the world's most wanted criminal

Power remains strong when it remains in the dark. Snowden's crime, says Noam Chomsky, is that he has exposed power to the sunlight, where it will evaporate

In the past several months, we have been provided with instructive lessons on the nature of state power and the forces that drive state policy. And on a closely related matter: the subtle, differentiated concept of transparency.

The source of the instruction, of course, is the trove of documents about the National Security Agency surveillance system released by the courageous fighter for freedom Edward J. Snowden, expertly summarized and analyzed by his collaborator Glenn Greenwald in his new book, "No Place to Hide."

The documents unveil a remarkable project to expose to state scrutiny vital information about every person who falls within the grasp of the colossus - in principle, every person linked to the modern electronic society.

Nothing so ambitious was imagined by the dystopian prophets of grim totalitarian worlds ahead.

It is of no slight import that the project is being executed in one of the freest countries in the world, and in radical violation of the US Constitution's Bill of Rights, which protects citizens from "unreasonable searches and seizures," and guarantees the privacy of their "persons, houses, papers and effects."

Much as government lawyers may try, there is no way to reconcile these principles with the assault on the population revealed in the Snowden documents.

It is also well to remember that defense of the fundamental right to privacy helped to spark the American Revolution. In the 18th century, the tyrant was the British government, which claimed the right to intrude freely into the homes and personal lives of American colonists. Today it is American citizens' own government that arrogates to itself this authority.

Britain retains the stance that drove the colonists to rebellion, though on a more restricted scale, as power has shifted in world affairs. The British government has called on the NSA "to analyse and retain any British citizens' mobile phone and fax numbers, emails and IP addresses, swept up by its dragnet," The Guardian reports, working from documents provided by Snowden.

British citizens (like other international customers) will also doubtless be pleased to learn that the NSA routinely receives or intercepts routers, servers and other computer network devices exported from the United States so that it can implant surveillance tools, as Greenwald reports in his book.

As the colossus fulfills its visions, in principle every keystroke might be sent to President Obama's huge and expanding databases in Utah.

In other ways too, the constitutional lawyer in the White House seems determined to demolish the foundations of our civil liberties. The principle of the presumption of innocence, which dates back to Magna Carta 800 years ago, has long been dismissed to oblivion.

Recently The New York Times reported the "anguish" of a federal judge who had to decide whether to allow the force-feeding of a Syrian prisoner who is on a hunger strike to protest his imprisonment.

No "anguish" was expressed over the fact that he has been held without trial for 12 years in Guantanamo, one of many victims of the leader of the Free World, who claims the right to hold prisoners without charges and to subject them to torture.

These exposures lead us to inquire into state policy more generally and the factors that drive it. The received standard version is that the primary goal of policy is security and defense against enemies.

The doctrine at once suggests a few questions: security for whom, and defense against which enemies? The answers are highlighted dramatically by the Snowden revelations.

Policy must assure the security of state authority and concentrations of domestic power, defending them from a frightening enemy: the domestic population, which can become a great danger if not controlled.

It has long been understood that information about the enemy makes a critical contribution to controlling it. In that regard, Obama has a series of distinguished predecessors, though his contributions have reached unprecedented levels, as we have learned from the work of Snowden, Greenwald and a few others.

To defend state power and private economic power from the domestic enemy, those two entities must be concealed - while in sharp contrast, the enemy must be fully exposed to state authority.

The principle was lucidly explained by the policy intellectual Samuel P. Huntington, who instructed us that "Power remains strong when it remains in the dark; exposed to the sunlight it begins to evaporate."

Huntington added a crucial illustration. In his words, "you may have to sell [intervention or other military action] in such a way as to create the misimpression that it is the Soviet Union that you are fighting. That is what the United States has been doing ever since the Truman Doctrine" at the outset of the Cold War.

Huntington's insight into state power and policy was both accurate and prescient. As he wrote these words in 1981, the Reagan administration was launching its war on terror - which quickly became a murderous and brutal terrorist war, primarily in Central America, but extending well beyond to southern Africa, Asia and the Middle East.

From that day forward, in order to carry out violence and subversion abroad, or repression and violation of fundamental rights at home, state power has regularly sought to create the misimpression that it is terrorists that we are fighting, though there are other options: drug lords, mad mullahs seeking nuclear weapons, and other ogres said to be seeking to attack and destroy us.

Throughout, the basic principle remains: Power must not be exposed to the sunlight. Edward Snowden has become the most wanted criminal in the world for failing to comprehend this essential maxim.

In brief, there must be complete transparency for the population, but none for the powers that must defend themselves from this fearsome internal enemy. More

Source: Truthout

 

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The empire strikes back: How Brandeis foreshadowed Snowden and Greenwald

So-called liberals attack the whistle-blower duo -- and a brilliant Supreme Court justice saw it all coming

In the famous wiretapping case Olmstead v. United States, argued before the Supreme Court in 1928, Justice Louis Brandeis wrote one of the most influential dissenting opinions in the history of American jurisprudence. Those who are currently engaged in what might be called the Establishment counterattack againstGlenn Greenwald and Edward Snowden, including the eminent liberal journalists Michael Kinsley and George Packer, might benefit from giving it a close reading and a good, long think.

Brandeis’ understanding of the problems posed by a government that could spy on its own citizens without any practical limits was so far-sighted as to seem uncanny. (We’ll get to that.) But it was his conclusion that produced a flight of memorable rhetoric from one of the most eloquent stylists ever to sit on the federal bench. Government and its officers, Brandeis argued, must be held to the same rules and laws that command individual citizens. Once you start making special rules for the rulers and their police – for instance, the near-total impunity and thick scrim of secrecy behind which government espionage has operated for more than 60 years – you undermine the rule of law and the principles of democracy.

“Our Government is the potent, the omnipresent teacher,” Brandeis concluded. “For good or for ill, it teaches the whole people by its example. Crime is contagious. If the Government becomes a lawbreaker, it breeds contempt for law; it invites every man to become a law unto himself; it invites anarchy. To declare that in the administration of the criminal law the end justifies the means — to declare that the Government may commit crimes in order to secure the conviction of a private criminal — would bring terrible retribution.”

Kinsley’s anti-Greenwald screed in the New York Times Book Review, and Packer’slonger and subtler essay for the British magazine Prospect, deliberately ignore or finesse the question of what the government has taught us through its black budgets, its institutional paranoia, its super-secret and extra-constitutional spycraft. Those two articles, and others like them, amount to a sophisticated effort to change the subject on the Greenwald-Snowden affair now that its initial impact has faded, and also to reassure by way of bewilderment: In the face of all this confusion about who’s right and who’s wrong, the best policy is to keep calm, carry on and leave all this boring stuff to the experts. Instead of focusing on the larger issues of privacy, power and secrecy articulated by Brandeis or on the corroded nature of contemporary democracy, Kinsley and Packer urge us to deplore the perceived personality defects or political misjudgments of Greenwald and Snowden, and throw up a virtual smokescreen of invidious comparison. OK, maybe that whole NSA thing wasn’t super awesome – but you could be living in Communist Russia!

You know, I have some criticisms of Glenn Greenwald too, and I’d be happy to share them with you, or with him, on some other occasion. George Packer is no dolt, and he scores a few hits on both Greenwald and Snowden in his enormous and detailed article, which at least on the surface is much more evenhanded and thoughtful than Kinsley’s drive-by hackwork. But to observe that Greenwald can make infelicitous or inconsistent statements at times, or that his argument about the chilling cultural effect of mass surveillance is not well worked out, does not add up to “a pervasive absence of intellectual integrity.” For that I’m afraid that Packer – still in ideological rehab, it seems, for his “liberal interventionist” support of the Iraq War and the neoconservative foreign-policy agenda – had better look in the mirror.

When Greenwald derides mainstream journalists (in his response to Kinsley) as “jingoistic media courtiers” tasked with attacking “anyone who voices any fundamental critiques of American political culture,” he is not being polite or diplomatic, and is no doubt painting with too broad a brush. There are numerous exceptions, and as Greenwald surely knows, the newsrooms of the New York Times, the Washington Post and the Wall Street Journal have over the decades been the sites of vigorous internal debate about how best to cover issues of surveillance, espionage and national security. But as a general tendency, he’s more right than wrong, and in this instance Kinsley and Packer are fighting a vigorous rearguard action on behalf of the entrenched interests of the Beltway elite, the self-described serious grownups of the “permanent government” and their well-connected media allies.

Any pretense of a critical relationship toward power — which was once supposed to be the journalist’s role in a democratic society — has been abandoned altogether (in Kinsley’s case) or eaten away to nothing by reasonable-sounding nuance and dispassionate analysis, as with Packer. Kinsley’s review has already been subjected to widespread mockery, even by “mainstream” commentators like the Washington Post’s Erik Wemple, and no wonder; it reads as if it had been cranked out during a single Acela Express trip from New York to D.C. (and filed by the time he reached Wilmington). Kinsley appears to feel that the entire topic of Greenwald and Snowden is beneath him, and that it raises no questions to which the right-thinking people in his circle don’t already know the answers: Journalists have no special rights or privileges, David Gregory was being “perfectly reasonable” when he accused Greenwald on “Meet the Press” of being a criminal, and we simply can’t allow “newspapers and reporters to chase down and publish any national security leaks they can find.” Who gets to decide how, when and whether government secrets are released? Why, the government, of course! Isn’t it obvious? More

Dissenting opinion of Justice Louis D. Brandeis in Olmstead v. United States

 

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Oil Company’s Restraining Order Bars Anti-Fracking Protestor From Grocery Store, Friends’ Houses

In October of 2013, Cabot Oil & Gas secured a court order that effectively banned an anti-fracking activist from entering any land owned or leased by the company. But because of the broad scope of the court order, that activist is now claiming she legally can’t go to the grocery store, the hospital, restaurants, and even her friends’ homes.

Vera Scroggins

“It’s tough to try to figure out, where can I stand? Where can I walk?” Vera Scroggins told the Associated Press on Tuesday. “It’s not a pleasant thing to endure.”

Cabot, one of the biggest names in Pennsylvania’s natural gas rush, had sought a preliminary injunction against Scroggins in October after alleging that she had repeatedly trespassed onto several of the company’s leased and owned properties, giving unauthorized tours of their operations. After hearing testimony from employees and security personnel, Susquehanna County Judge Kenneth Seamans granted Cabot’s request to have Scroggins legally barred from not only the land Cabot owns, but from all the land it holds mineral leases on.

The problem with that, according to Scroggins’ attorneys, is that nearly 40 percent of Susquehanna County land is owned or leased by Cabot. This includes the grocery store, the local recycling center, the hospital that is nearest to her home, and several of her friends’ houses.

“In short, the right to extract gas is, according to the company, also the right to banish,” Scroggins’ attorneys said in a motion asking Susquehanna County Judge Kenneth Seamans to undo his October order. A ruling on that motion could come this week, the Associated Press reports.

In arguing for the ban, Cabot allegedly said that its leases for the mineral rights below properties like the grocery store and hospital granted the company an “exclusive property interest” in that land. But Scroggins — who elected not to have attorney representation at the time of the October order — is now arguing alongside her attorneys that Cabot’s leases contain no language that grant the company such a broad right.

Additionally, her attorneys are saying that Cabot’s request and Judge Seamans’ decision violated Scroggins’ Constitutional rights to freedom of speech and movement.

“The injunction sends a chilling message to those who oppose fracking and wish to make their voices heard or to document practices that they fear will harm them and their neighbors,” the motion said. “That message is loud and clear: criticize a gas company, and you’ll pay for it.”

According to the motion, Cabot isn’t even continuing to seek the broad restraining order. In an amended complaint against Scroggins filed in January, Cabot said it would prefer a more specific but permanent injunction barring Scroggins from entering onto properties owned and leased by Cabot, but only where it is actually conducting operations. The company also wants to ban Scroggins from coming anywhere within 150 feet of that land.

This is hardly the first time an activist fighting against fossil fuel development has find herself in legal hot water.

In Australia, Jonathan Moylan is facing jail time after a fake press release he distributed led to temporary stock market confusion. In the U.S., activist and journalist Mike Stark is being sued for defamation after writing a strongly opinionated article about coal baron Robert Murray. And in November, Canadian environmental writer, illustrator and activist Franke James was blacklisted by the Canadian government for making art that was critical of the Canadian government’s policies with respect to tar sands and climate change.

 

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NSA’s vast new Utah data hub suffering from ‘meltdowns’ - report

Though the NSA’s vast data storage facility in Utah is now hardly a secret, new information has surfaced indicating widespread technical failures delaying its opening, including 10 “meltdowns” within the past 13 months.

NSA' Bluffdale Data Storage Facility

The Pentagon’s facility, located in Bluffdale, which lies south of Salt Lake City, is being built to house a gargantuan quantity of data harvested, presumably, by many of the NSA’s surveillance programs now made public by former intelligence contractor Edward Snowden.

Estimates of the facility’s capacity, which is classified, ranges from exabytes or zettabytes, reports the Wall Street Journal. An exabyte being equivalent to 100,000 times the size of printed material held by the Library of Congress, while a zettabyte is 1,000 times that amount.

A new report compiled through project documents and information provided to the WSJ by officials cite a number of electrical surges -- called “arc fault failures" -- which over the past 13 months have destroyed hundreds of thousands of dollars’ worth of equipment, and delayed the facility from going active for a year.

According to one official, such arc fault failures can resemble “a flash of lightning inside a 2-foot box” and can melt metal and destroy circuitry.

Speculation as to whether the NSA’s facility in Utah is already active has been rampant, and indications are that its equipment is being slowly brought online as it becomes available, rather than in one dramatic on-switch moment.

"We turn each machine on as it is installed, and the facility is ready for that installation to begin," NSA spokeswoman Vanee Vines told the Salt Lake City Tribune in late September.

The $1.5 billion facility is estimated to be not only the NSA’s largest data center, but the largest in the world, with some 1 million square feet of space. Engineers have said the center will dwarf even Google’s largest data hub.

Special teams from the Army Corps of Engineers have been assigned to investigate the electrical issues at the Utah center. The most recent arc failure according to the WSJ seems to have occurred on September 25, causing $100,000 in damage. The first such reported failure is thought to have taken place on August 9 of last year.

So far the information available indicates that the reason for the technical failures remains in dispute. A statement issued by a consortium of private contractors currently working on site eluded to the sheer complexity of the data warehouse as the culprit.

"Problems were discovered with certain parts of the unique and highly complex electrical system. The causes of those problems have been determined and a permanent fix is being implemented,” said the firms.

According to various reports, including the latest by the WSJ, the Bluffdale site was chosen by the NSA owing to its affordable electricity. The data hub will consume some 65 megawatts of energy at a cost of $1 million per month.

Beyond its logistical hurdles, the NSA’s data hub will also open amidst heightened scrutiny. Lawmakers including Senator Ron Wyden, a member of the Senate Intelligence Committee who recently questioned whether the NSA has also been harvesting geo-location data, have expressed a need to lay out just how the NSA will justify the collection of an increasingly dramatic amount of data.

"There is no question there is going to be increased scrutiny of these kinds of practices," said Wyden, "because Americans understand this is a dangerous time, but the government, if it’s going to collect [this information], ought to have to say here’s how it contributes to security of the American people. They have not made that case."

Only a week prior to Edward Snowden’s first batch of published leaks, the massive Utah center had been billed by the agency’s Deputy Director, John Inglis, as only one additional working part of the country’s national security apparatus.

"They shouldn’t be worried because, A, we’re Americans," Inglis said. "We understand what the principles are that govern the nation; [and] B, we take an oath to the Constitution, and we take that very seriously." More

If we are lucky it will self destruct! Editor

Challenging the NDAA: We Won—For Now - Chris Hedges

In January I sued President Barack Obama over Section 1021(b)(2) of the National Defense Authorization Act (NDAA), which authorized the military to detain U.S. citizens indefinitely, strip them of due process and hold them in military facilities, including offshore penal colonies.

Last week, round one in the battle to strike down the onerous provision, one that saw me joined by six other plaintiffs including Noam Chomsky and Daniel Ellsberg, ended in an unqualified victory for the public. U.S. District Judge Katherine Forrest, who accepted every one of our challenges to the law, made her temporary injunction of the section permanent. In short, she declared the law unconstitutional.


Almost immediately after Judge Forrest ruled, the Obama administration challenged the decision. Government prosecutors called the opinion “unprecedented” and said that “the government has compelling arguments that it should be reversed.” The government added that it was an “extraordinary injunction of worldwide scope.” Government lawyers asked late Friday for an immediate stay of Forrest’s ban on the use of the military in domestic policing and on the empowering of the government to strip U.S. citizens of due process.


The request for a stay was an attempt by the government to get the judge, pending appeal to a higher court, to grant it the right to continue to use the law. Forrest swiftly rejected the stay, setting in motion a fast-paced appeal to the 2nd U.S. Circuit Court of Appeals and possibly, if her ruling is upheld there, to the Supreme Court of the United States. The Justice Department sent a letter to Forrest and the 2nd Circuit late Friday night informing them that at 9 a.m. Monday the Obama administration would ask the 2nd Circuit for an emergency stay that would lift Forrest’s injunction. This would allow Obama to continue to operate with indefinite detention authority until a formal appeal was heard. The government’s decision has triggered a constitutional showdown between the president and the judiciary.


“This may be the most significant constitutional standoff since the Pentagon Papers case,” said Carl Mayer, co-lead counsel for the plaintiffs. More