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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If the Government Does It, It's Legal

Indefinite detention of the innocent and guilty alike, without any hope of charges, trial, or release: this is now the American way. Most Americans, however, may not care to take that in, not even when the indefinitely detained go on a hunger strike.

That act has certainly gotten Washington’s and the media’s collective attention. After all, could there be anything more extreme than striking against your own body to make a point? Suicide by strike? It’s the ultimate statement of protest and despair. Certainly, the strikers have succeeded in pushing Guantanamo out of the netherworld of non-news and onto front pages, into presidential news conferences, and to the top of the TV newscasts. That, in a word, is extraordinary. But what exactly do those prisoners, many now being force-fed, want to highlight? Here’s one thing: despite the promise he made on entering the Oval office, President Obama has obviously not made much of an effort to close the prison, which, as he said recently, “hurts us, in terms of our international standing... [and] is a recruitment tool for extremists.”

If Congress has been thoroughly recalcitrant when it comes to closing Guantanamo, the president’s idea of what shutting down that prison meant proved curious indeed. His plan involved transferring many of the prisoners from Cuba, that crown jewel of the offshore Bermuda Triangle of injustice that the Bush administration set up in January 2002, to a super-max-style prison in Illinois (“Gitmo North”). That would mean, of course, transferring indefinite detention from the offshore world of extraordinary rendition, black sites, and torture directly into the heart of the American justice system. Obama himself has indicated that at least 50 of the prisoners can, in his view, never be released or tried (in part because confessions were tortured out of some of them). They would be kept in what he, in the past, politely termed “prolonged detention.”

Here’s a second thing the strikers undoubtedly wanted to highlight and it's even harder to take in: Guantanamo now holds 86 prisoners (out of the 166 caged there) who have been carefully vetted by the U.S. military, the FBI, the CIA, and so on, and found to have done nothing for which they could be charged or should be imprisoned. All 86 have been cleared for release -- years late, often after brutal interrogation experiences sometimes involving torture. The problem: there is nowhere to release them to, especially since the majority of them are Yemenis and President Obama has imposed a moratorium on transferring any prisoner to Yemen.

Then there are the prisoners who may indeed have done something criminal in regard to the U.S., but had confessions tortured out of them which won't hold up in court. They are among the ones who will never be brought to trial, but never cleared for release either. In other words, indefinite detention, something anathema to the American justice system, will for the conceivable future be us. The fact that relatively few Americans seem fazed by this should be startling. No charges, no trials, but never getting out of prison: that would once have been associated with the practices of a totalitarian state.

We know one thing: no one, not George W. Bush, Dick Cheney, Donald Rumsfeld, Condoleezza Rice, or other top officials involved in setting up such a global system of injustice, sweeping up the innocent with the guilty, and subjecting them to horrors without end (including now force-feeding) will ever be brought to justice in an American court, nor will anyone involved in the system of rendition, torture, or abuse. In the Obama years, while indefinite detention remained a grim American reality, the government, as TomDispatch regular and former State Department officer Peter Van Buren himself experienced, honed other methods for punishing those it was unhappy with, especially whistleblowers of all sorts.

One of those methods might be called “indefinite suspension.” Instead of not being charged, you are charged repeatedly and dragged endlessly -- your life in a state of suspension -- through various bureaucratic judicial processes, the actual courts, and endless appeals thereof, so that even if sooner or later you come out the other side exonerated, you will still have been punished for your “crimes.” Let Peter Van Buren explain this mockery of "justice."

Homeland Insecurity: Seven Years, Untold Dollars to Silence One Man By Peter Van Buren

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Those [drone] strikes are a war crime

A new Stanford-NYU report, "Living Under Drones," details the devastation to civilians - and possible war crimes - resulting from US drone strikes in Pakistan.

On the morning of March 17, 2011, Ahmed Jan joined over 40 other people at a bus station in Datta Khel, North Waziristan in Pakistan to settle a community issue in a large meeting, or jirga. The group split up into two circles, about 12 feet apart from each other, and despite the drones buzzing overhead, those present later described feeling "secure and isolated" from the drones. It was a sanctioned meeting and Pakistani authorities had been made aware of it.

Jan was sitting in one of those circles when he heard a "hissing sound." An instant later a drone-fired missile struck the middle of his group, sending his body flying and killing everyone around him.

At least one more missile was fired, hitting the second group. Another witness, Idris Farid, said, "Everything was devastated. There were pieces - body pieces - lying around. There was lots of flesh and blood."

As UN Special Rapporteur on extrajudicial, summary or arbitrary executions Christof Heyns observed, "[I]f civilian 'rescuers' are indeed being intentionally targeted, there is no doubt about the law: Those strikes are a war crime...."

At least 42 people were killed that day, many of them civilians. The Obama administration claims, to this day, that all those killed were insurgents.

This information comes from a new report jointly released by human rights attorneys from Stanford and New York University (NYU) that details with disturbing clarity the horror that it is to live in a drone-patrolled region. More

 

Emmerson Calls for an end to Drone Strikes in Pakistan

In a surprising, yet positive, statement, the UN Rapporteur for Human Rights and Counter-terrorism, Ben Emmerson, called on the US to answer questions regarding the secrecy of its drone operations.

To many, the statement came as a shock as such a demand was not made on the international level in the past from the US, and coming as it did from the UN, a body supposedly favoring the US, surprised many. Emmerson has been vocal on questioning the legality of the drones and the global outrage resulting from the Predator strikes.Commenting on the issue, 20th August, he said:

“We can’t make a decision on whether it is lawful or unlawful if we do not have the data. If they (the drone technology users) do not establish a mechanism (of internal investigation), it will be my recommendation that the UN should put the mechanisms in place through the Human RightsCouncil, the General Assembly and the Office of the High Commissioner.”

Soon after taking over, Emmerson made sure that highlighting the illegal use of drones and its drastic consequences were among his top priorities. He is also in the process of preparing a comprehensive report for the next session of the UN Human Rights Council in March, where he will report on the spike in the use of drone technology by the Obama administration.



Primarily known as an accomplished lawyer in the United Kingdom, Emmerson is also working for the promotion of fair trials and compensation for innocent war victims. He is also trying to change the international narrative on terrorism and terrorists, where every war prisoner is tagged as a terrorist, with most of them not having the opportunity of a fair trial. But more importantly, his stance on drone attacks, and especially their rise in Pakistan, has started a serious debate in international circles over the morality and legality of the issue.

The recent pace of CIA-operated drone strikes increased in the month of August in Waziristan – Federally Administered Tribal Areas (FATA) – Pakistan. In total, seven drone attacks took place in a month, the highest number in a single month for the current year. The first use of drone attacks was reported in a article in New York Times in 2008, and since then their use has been carried on unabated. A total of 32 drone strikes have hit FATA in 2012. To date, close to 340 drone strikes have killed more than 800 civilians and have caused approximately 3,300 casualties, which, for reasons of media prohibitions in the region, are also dubious as to whether the victims were militants or civilians. More

 

This must also apply to Yemen and Somalia where the United States, throught their military and the Central Intelligence Agemcy (CIA) is operating similar programs. Editor