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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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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Here's how we take back the Internet

Appearing by telepresence robot, Edward Snowden speaks at TED2014 about surveillance and Internet freedom. The right to data privacy, he suggests, is not a partisan issue, but requires a fundamental rethink of the role of the internet in our lives — and the laws that protect it. "Your rights matter,” he say, "because you never know when you're going to need them." Chris Anderson interviews, with special guest Tim Berners-Lee.

© 2014

The Day We Fight Back Against Internet Surveillance

DEAR USERS OF THE INTERNET,

In January 2012 we defeated the SOPA and PIPA censorship legislation with the largest Internet protest in history. A year ago this month one of that movement's leaders, Aaron Swartz, tragically passed away.

Aaron Swartz

Today we face a different threat, one that undermines the Internet, and the notion that any of us live in a genuinely free society: mass surveillance.

If Aaron were alive, he'd be on the front lines, fighting against a world in which governments observe, collect, and analyze our every digital action.

Now, on the eve of the anniversary of Aaron's passing, and in celebration of the win against SOPA and PIPA that he helped make possible, we are announcing a day of protest against mass surveillance, to take place this February 11th. More

 

 

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

A Shameful Day To Be A American Citizen by Dave Lindorff

I have been deeply ashamed of my country many times. The Nixon Christmas bombing of Hanoi and Haiphong was one such time, when hospitals, schools and dikes were targeted.

Edward Snowden

The invasion of Iraq was another. Washington’s silence over the fatal Israeli Commando raid on the Gaza Peace Flotilla--in which a 19-year-old unarmed American boy was murdered--was a third. But I have rarely been as ashamed and disgusted as I was Saturday reading that US Attorney General Eric Holder had sent a letter to the Russian minister of justice saying that the US would “not seek the death penalty” in its espionage case against National Security Agency whistleblower Edward Snowden, promising that even if the US later brought added charges against Snowden after obtaining him, they would not include any death penalty, and vowing that if Snowden were handed over by Russia to the US, he would “not be tortured.”

So it has come to this: That the United States has to promise (to Russia!) that it will not torture a prisoner in its control -- a US citizen at that -- and so therefore that person, Edward Snowden, has no basis for claiming that he should be “treated as a refugee or granted asylum.”

Why does Holder have to make these pathetic representations to his counterpart in Russia?

Because Snowden has applied for asylum saying that he is at risk of torture or execution if returned to the US to face charges for leaking documents showing that the US government is massively violating the civil liberties and privacy of every American by monitoring every American’s electronic communications.

Snowden has made that claim in seeking asylum because he knows that another whistleblower, Pvt. Bradley Manning, was in fact tortured by the US for months, and held without trial in solitary confinement for over a year before being finally put on trial in a kangaroo court, where the judge is as much prosecutor as jurist, and where his guilt was declared in advance by the President of the United States -- the same president who has also already publicly declared Snowden guilty too.

It is incredibly shameful that we US citizens have to admit that we live in a country that tortures its prisoners, that casually executes people who are mentally retarded, who are innocent, who had defense attorneys who slept through their clients’ trials, whose prosecutors slept with the judge, who were denied access to DNA evidence that could have proven their innocence, or who were convicted based upon the lies of prosecutors and prosecution witnesses.

This country’s “justice” system has become so perverted and politically tainted that the rest of the world, including Russia, knows that Snowden is telling the truth when he says he cannot hope to receive a fair trial here. Indeed, Congress has passed laws, and the President has signed laws, giving this government the power to lock someone like Snowden up indefinitely without trial, to torture him, and even to kill him, not through a jury decision on capital punishment, but simply on the basis of a secret “finding” by the President that he has aided or abetted terrorism.

No wonder Russia and several other countries, including Venezuela, Bolivia and Nicaragua, have offered or are considering offering Snowden asylum.

And no wonder that, in its obsession with getting its tyrannical hands on him, this government is willing to promise (for what a promise from the US government is worth) not to kill him or torture him.

Shame and anger are the only appropriate responses to that letter from Holder.

If this were a country that honored the rule of law, Attorney General Holder would not need to promise not to torture. He would need only to point to the US Constitution, with its ban on “cruel and unusual punishment.” He would not need to promise a fair trial to Snowden, with no capital punishment on any charges. He could point instead to the Constitution’s promise of a presumption of innocence and of a public trial by a jury of the accused’s peers, to make the case against the granting of asylum.

In such a country, someone like Snowden, with the help of a crack legal team, would have a fair shot at proving to a jury his innocence of the government’s frivolous espionage charges. He’d have a fair chance of convincing at least one juror of his absolute innocence of any crime, making his conviction impossible.

But that is not what this country is, especially today.

In today’s US courts, we know the “Justice” Department would seek to bar testimony about Snowden’s motives in leaking the documents he downloaded from the NSA’s computers. They would ask the judge to limit defense arguments and testimony in the case to the narrow issue of whether or not he downloaded and leaked files, not to whether those files exposed Constitutional violations and needed to be brought to the public’s attention. Our judges, nominated by presidents and confirmed by senators, Democrat and Republican, who want jurists who favor government secrecy and who generally side with the government against the people, can be counted on to grant the government’s motions.

In such circumstances, a defendant like Snowden, facing charges of espionage or theft of government secrets, has no ability to defend himself. The trial would be like in a Lewis Carroll event: “Verdict first, trial later!” More

 

Bradley Manning should win the Nobel Peace Prize

Peace is more than simply the absence of war; it is the active creation of something better.

Bradley Manning

Alfred Nobel recognized this when he created alongside those for chemistry, literature, medicine and physics, an annual prize for outstanding contributions in peace. Nobel's foresight is a reminder to us all that peace must be created, maintained, and advanced, and it is indeed possible for one individual to have an extraordinary impact. For this year's prize, I have chosen to nominate US Army Pfc Bradley Manning, for I can think of no one more deserving. His incredible disclosure of secret documents to Wikileaks helped end the Iraq War, and may have helped prevent further conflicts elsewhere.

I recently visited Syria, where I met a few of the millions of refugees and internally displaced people whose lives have been torn apart by the ongoing conflict in that country. I learned from those I spoke to, both within the government and in opposition groups, that while there is a legitimate and long-overdue movement for peace and non-violent reform in Syria, the worst acts of violence are being perpetrated by outside groups. Extremist groups from around the world have converged upon Syria, bent on turning this conflict into one of ideological hatred.

In recent years this would have spelled an undeniable formula for United States intervention. However, the world has changed in the years since Manning's whistleblowing – the Middle East especially. In Bahrain, Tunisia, Egypt, and now Turkey, advocates of democracy have joined together to fight against their own governments' control of information, and used the free-flowing data of social media to help build enormously successful non-violent movements. Some activists of what has come to be known as the Arab Spring have even directly credited Bradley Manning, and the information he disclosed, as an inspiration for their struggles.

In a Middle East newly dedicated to democratic flow of information, those who would commit human rights violations can more easily be held accountable. If not for whistleblower Bradley Manning, the world still might not know of how US forces committed covert crimes in the name of spreading democracy in Iraq, killing innocent civilians in incidents such as the one depicted in the "Collateral Murder" video, and supporting Iraqi prisoner torture. Now, those who would support foreign intervention in the Middle East know that every action would be scrutinized under international human rights law. Clearly, this is for the best. International peacekeepers, as well as experts and civilians inside Syria, are nearly unanimous in their view that United States involvement would only worsen this conflict.

Around the world, Manning is hailed as a peacemaker and a hero. His nomination for the Nobel Peace Prize is a reflection of this. Yet at his home in America, Manning stands trial for charges of espionage and "aiding the enemy". This should not be considered a refutation of his candidacy – rather, he is in good company. Burmese politician Aung San Suu Kyi and Chinese writer Liu Xiaobo were each awarded the prize in recent years while imprisoned by their home countries.

Last week at Manning's trial, the public learned that at the time Manning released his information, WikiLeaks stated they wanted to publish "the concealed documents or recordings most sought after by a country's journalists, activists, historians, lawyers, police or human rights investigators". Manning's disclosures to Wikileaks only "aided the enemy," as his prosecutors charge, if the enemy is international cooperation and peace itself.

Manning is the only one on trial, yet what of those who committed the atrocities he revealed? The United States, the most militarized country on earth, should stand for something better than war. Its government must be open to "debates, discussions and reforms" concerning its foreign policy, to use Manning's own words. By heeding Pfc Bradley Manning's message on the importance of transparency, America's government can once again rebuild its image in the eyes of the world, and spread democracy not through foreign invasions, but through setting a strong example. More

Do you want your government to be accountable? How else should you do so? They certainly cannot be trusted to police themselves as the NSA fiasco shows. Do you want more American enemies to be created every day? Ask your self what type of government you want. Editor