Former CIA & NSA Boss: September 11th Gave Me Permission To Reinterpret The 4th Amendment

Tech Dirt – by Mike Masnick

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.”

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.”

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.

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.