Michael Hayden's Hollow Constitution

In a recent speech, the former NSA director argued that what constitutes a reasonable search under the 4th Amendment changed on September 11, 2001.

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.