Why Isn't the Fourth Amendment Classified as Top Secret?
theatlantic.com
theatlantic.com
He really really doesn't get it, and seems to not be able to follow the logic of his arguments through to their end result (often claiming that those end results just won't happen, despite actual evidence to the contrary).
For example, he doesn't see how (and has in the past denied) his idea of having secret overseers made of a special class of citizens may resultin a star chamber, despite this actually happening multiple times in the past.
He also doesn't understand that his techniques are simply ineffective. Keeping surveillance and its limits secret has not stopped anything from happening. It's just caused it to be abused along the way. The "good terrorists" (in the sense of being good at terrorism, not morality) were already taking literally every precaution anyway, because they have to assume the worst. This is true whether they know they are being surveilled or not.
For a small government conservative, he is one of the most paternalistic people i've seen in a long time when it comes to intelligence. For example, he was responsible for forcing everyone else to provide incoming passenger details to the US, then, on the side, repudiated most of the US obligations to protect the info.
He also strongly believes 9/11 was an intelligence failure, but of "the FBI was required to follow too many laws, and wasn't allowed to use invasive modern technologies" type.
See http://www.9-11commission.gov/hearings/hearing6/witness_bake...
("In my view, there were two problems – a problem with the tools our agencies were able to use and a problem with the rules they were required to follow.")
Not authority; credibility. It's a nitpick, but the distinction is important when we're discussing government agents. Credibility is essentially rhetorical authority ("I am willing to take your word because I consider you an expert in the relevant domain"), rather than the kind of authority derived from official bestowment of power.
Authority: 3. • a person with extensive or specialized knowledge about a subject; an expert: she was an authority on the stock market.
From the Oxford American Dictionary
It's this meaning of the word authority used in Appeal to Authority: http://en.wikipedia.org/wiki/Argument_from_authority
But we're talking about this guy named Stewart Baker, who just so happens to have authority as a senior officer of the executive branch of the United States Government.
This is also a type of authority. It is not the relevant type of authority when discussing whether or not a statement is an ad hominem.
I addressed exactly the claims he was quoted about in the article, and pointed out other issues with his reasoning. I pointed out these exact reasoning flaws seem to be a recurring issue with him.
I did not attempt to invalidate his argument by attacking his character, I attacked his character on the side.
"Because he's a nitwit, his arguments are wrong." = Ad Hominem
"Because his arguments are wrong, he's a nitwit." = Not Ad Hominem
It's impossible to point out that someone is blatantly lying without drawing attention to the fact that they are the sort of person who would blatantly lie.
Character and speech are inseparable. As the line from Shakespeare says "Speak, so that I may see thee."
Indeed, we are constantly evaluating the intelligence, integrity, goodwill, and authority of people based—in large part—on what they say.
It's absurd to think that we cannot demolish an argument as dishonest, stupid, ill-informed, or made in bad faith because doing so would inevitably imply the same of the speaker.
One of the he best reasons for maintaining a culture of free speech is that it permits the dangerous idiots to self-identify.
People don't like being ridiculed, so ridicule often gets through to them when straightforward corrections do not.
"The target" didn't think before he posted.
There is value in silencing "the target".
"Ridicule often gets through to them -"
It's nice that The Volokh Conspiracy is now on the Washington Post because now Stewart Baker can't disable comments and people can point out the elementary flaws in his reasoning.
... did you not read that as satire? It pretty clearly seemed to be satire.
I thought the whole thing was a reductio ad absurdum re: keeping the extent of surveillance secret.
That's how he can dismiss the evidence, because that's other countries, and the lesson doesn't apply to America.
Probably this doesn't bubble up to conscious awareness, and perhaps in Baker's case I'm being too generous and he really is just a straight-up fascist. But for average folks, who don't have any political power, and who nonetheless buy into this nonsense, I think this is a common frame they use to convince themselves.
This is the great danger of nationalism.
Thomas Jefferson
- John Philpot Curran, 1790 (attributed by Lord Denning, 1988)
It's possible that the active party eating away at rights are terrorists, but I don't think that is ever a key interest of those actors.
The problem is that Snowden's actions land somewhere in that huge gap between those two options. We can once again all probably agree that the ideal solution also lies between those two extremes. So trying to frame the debate as if either extreme is a possible outcome or one that is preferred by anyone seems disingenuous.
Plus, even though the 4th amendment clearly states that you can't even seize stuff from a person, without probable cause. Yet, they keep saying that they can, and it's ok to do it as long as they don't search it. They intentionally omit the seizure part of the 4th amendment.
Look at it this way. Would it be ok for the police to come into your home, no proper warrant other than a "general warrant", like the writ of assistance for which Americans rebelled against UK, and take your stuff, as long as they promise to not look through it?
I think that would be completely unacceptable and immediately be declared unconstitutional. Yet, NSA keeps pretending it's completely fine to take your "digital" stuff as long as they don't look at it.
While I agree that you can't take either government at their word, the fact that one can happen without your knowledge makes it the preferable option from both an intelligence standpoint and maybe philosophically a rights infringing standpoint. I.E. it is the intelligence version of the tree falling in the woods. Are my rights infringed if the infringement has no impact on any of my other rights or my life in general (I didn't say it can't effect your life, but for the majority of people surveyed, I would guess it doesn't)?
So, "Information wants to be secretly collected?" That has a certain symmetry to it.
Seizure is the wrong tack. The 4th Amendment also covers searches. SCOTUS has ruled in Katz that a reasonable expectation of privacy triggers 4th Amendment protections (clarified in additional rulings).
That is not the reason the restrictions exist at all. It's to prevent abuse of power, not just the police stealing your stuff.
Searching your house is, in general, far less abusive than stealing your digital information. You may not keep records of your private activities, you might not have any incriminating physical items. It also takes far more effort for the police to do.
Your digital information includes everywhere you've ever been, much of your conversations, the crazy things you Googled because you were curious, the porn you've looked at, everything you've ever bought, etc. Eventually it may even include recordings from microphone and cameras as they become ubiquitous. And all this becomes a permanent record of your life. It will be stored on some computer forever, never going away.
Oh ya, and it happens without your knowledge.
You're assuming no impact without evidence. Let's think about that first. Even assuming no G-men in black helicopters descend on you at any point in your life, what results from the government collecting all of this information?
The most obvious problem is, what happens if the government uses the same level of competence to keep your secrets secret as they do at anything else? What happens when some tool walks out of the NSA with a backpack full of hard drives comprising the metadata of everyone in the US for the past decade, and posts it on the internet?
The results of that are entirely predictable. Every vulnerable population whatsoever will be exposed to their antagonists. Crime bosses will be able to find informants and undercover law enforcement officers. Terrorists and criminals will be able to identify vulnerable targets. Industrial espionage and blackmail will proceed on a massive scale. Abusive spouses will find their exes. None of that reasonably classifies as "no harm no foul."
But OK, that hasn't happened yet, suppose we give them the benefit of the doubt. Uncle Sam is going to fill the server room with Marines until the end of days and keep everybody's secrets from ever leaking onto the internets. But still there is the government. If you know the government is recording your movements, are you going to be willing to visit a Communist rally to broaden your horizons or satisfy your intellectual curiosity? What about an abortion clinic, or a psychiatrist? What aren't husbands and wives going to be willing to say to each other for fear that someone could be listening? What essays aren't going to be published if their authors don't believe in their ability to remain anonymous against pervasive surveillance?
The problem with "harmless" surveillance is that it creates fear, and fear is a harm.
Wrong question. Would it be okay for the police to come into your home, not touch anything, but just write down a list of everything they see? What if they did this without the bodily intrusion?
It is arguable whether or not the Fourth covers this. There are legitimate legal arguments that can be made for its legality. You might not agree with those arguments, and you might not find them convincing, but you can't dismiss them just because you don't like it. You have to argue that property is, in fact, being seized (which I'd disagree with you on). You have to argue that "search" is sufficient to meet the standard of the Fourth. And so on.
If anything, this is one of the most striking examples of how we have to bend over backwards in order to fit 21st century morals and ethics to codes written 200 years ago.
The people I have seen on this board defend the NSA's actions don't see two things:
1. How much the US is an outlier.
2. How huge the gap between current practice and reasonableness is.
The US spends more than the rest of the world combined on weapons and soldiers. It is likely that intelligence follows this ratio. US military spending is near a historic high in constant dollars. But there is no Soviet Union. There is no military threat that can touch US territory. And yet we spent $TRILLIONS on overseas wars and incurred similarly staggering future liabilities for injured people and worn out materiel. We did 90% of that spending after our adversaries - the "bad guys" as they are referred to - had no weapons larger than a rifle. Not one aircraft. Not one armored vehicle.
The answer is not to "split the difference." There are not "two equal sides" to the story. Yes, there must be some state secrets. But none of what Snowden revealed needed to be a state secret. We are no less secure now than before Snowden. What that tells us is that every bit of secrecy around those documents was gratuitous and so were the secret programs themselves. All that secrecy did was to make us less free.
So let me challenge you about "either extreme." Let's say someone walked out of Ft. Meade tomorrow with a copy of everything. Including what the NSA knows about every state secret in every department of the government - let's assume that's everything. And then posted it openly on the Internet. Obviously extreme. Obviously irresponsible. Obviously some spies and informants would die.
But would that create an existential threat to the US, or not? Would it materially reduce the security of the American people? If not, why not work backward from that "extreme," of having no state secrets at all in small steps, until we have a reasonable and manageable number of state secrets. Everything else is unnecessary and corrosive to freedom.
The threat our intelligence community is trying to guard against is not military. It's the threat of a terrorist attack. Our elected representatives have repeatedly authorized the intelligence community to do various things to try to prevent such an attack. (Not to mention our military.) That includes authorizing various forms of secrecy.
You may not agree with all that, but the remedy is to elect different representatives, who have been clearly informed by the voters that preventing a terrorist attack is now lower priority, so it's OK to spend a lot less money on it. And of course, those same voters would have to agree not to complain to the government if the drastic reduction in spending resulted in an attack happening that could have been prevented if spending on intel had been higher.
The fundamental problem is that we want two things: freedom, and safety. But you can't have unlimited amounts of both; there's always a tradeoff.
would that create an existential threat to the US, or not?
The problem is that nobody knows unless they've seen the information that would be released, and once you've released it, you can't take it back. So nobody is going to run this experiment.
Or, would more people would die falling off ladders?
Now before you say "But! Ladders have utility!" consider that you would be implying that freedom and transparency and consent of the governed have no utilty, or, at least, less utility than ladders.
I don't know, because I haven't seen the data that currently isn't visible to the general public. Do you have an estimate?
please be specific about which terrorists and how
Now you're just being silly.
We must embrace the new tech including the spying, as the genie is out of the bottle. What we have to dk is develop rules and culture for how this can help the public. For example police officers should be REQUIRED to wear cameras and the video must be kept available to be produced in a trial.
We should spend money on the things that will prevent the most deaths. Yet compare the budget that goes towards counter terrorism vs. Funding for health research, or vehicle safety.
It is so amazing to me that people cannot see that America is like other countries in this way.
A state is a state, whether its the United States or Russia or China or Bolivia. Some states have more power. The more power they have, the more they try to retain their power.
The state is the ultimate authority and monopoly on violence, and it will use it to maintain its power and control. Surveillance of citizens is just a type of violence that people don't feel directly on their physical persons.
The nation-state is an ancient concept that is fundamentally based on violence. Its just an extremely official and well-respected Mafia. But still founded on the same criminal and unethical principles of coercion by threat of death or imprisonment.
I would certainly agree that states have lots of downsides. But I don't see how trying to stop people from flying airplanes into buildings or setting off nuclear weapons in the middle of cities is one of them.
Ah, I see: I mistook you for someone who was in touch with reality.
Don't worry, Emperor Alexander is already working hard to fix that glaring 1st Amendment problem!
http://dailycaller.com/2014/03/05/nsa-chief-says-legislation...
I propose that it's time for a technical fix to the 4th Amendment: the addition of one word, one comma, and one space.
> The right of the people to be secure in their persons, houses, papers, ++data, ++ and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
For the outcomes to be truly unbiased, a number of assumptions should be enforced, that are being insufficiently upheld: - the sample of the senators in the committee should to be representative of the people's interests. The 8/7 member split between parties sounds nice and non-partisan but might be biased in favour of the minority. Also, nomination to the post depends on party favour. - a mechanism guaranteeing that the intelligence committee obtains ALL pertinent documents sans curation by the agencies. It's certainly ridiculous that there's even the possibility the CIA could claim that the Intelligence Committee obtained some documents illegally. - finally, a notion of weighting actions appropriately. The intelligence committee is not in the business of taking action in itself, but making recommendations for the rest of congress to act on (subject to weights based on their political stances and the requirements of the situation). These weights are unfortunately being re-normalized to near even odds along purely political lines in the senate and in the media.
While the representational biases can be repaired somewhat with appropriate procedure, the final problem of retaining the right weights for actions doesn't seem solvable so long as the first amendment is around. One can't silence Fox/MSNBC pundits constantly trying to put their spins on every debate, and it's difficult to correctly evaluate these solutions unless the public can actually gauge the adequacy of each approach against all the data.
tl;dr: IMO the ability to take optimal rational decisions via proxy opinions from the intelligence committee is severely mitigated by biases inherent in the institution. So long as the committee model persists it may be possible to mitigate these biases but impossible to completely eliminate them.
I am very cynical, but I am not sure about this claim. I would agree to a narrowing of it, saying 'surveillance is more profitable to some concentrated and identifiable interests'. The government imposes a very large regulatory burden on many organizations as part of the PATRIOT act and many related executive orders and actions. The regulatory burden imposed by security interests often approaches the costs of labor and insurance regulations.
"That's some catch, that Catch-22," he observed.
"It's the best there is," Doc Daneeka agreed.”
No, it can't. It can try, but that doesn't mean it would succeed or even have a chance to. This is simply ridiculous. I don't know who Jonathan Abel is, but someone should teach him some basics on how the Internet and digital communications work. That goes for the author too. This is a hypothetical that is just not backed by reality. How exactly does one "give back" a digitally distributed document?
You seem to be confusing the notion of classification with the question of whether something is easily available. The Snowden and Manning leaks, for example, did not become unclassified simply because they became public.
[1] http://www.boston.com/news/nation/articles/2004/07/05/transl...
The problem with this is that sooner rather than later they will use these same con tricks in all the situations where they want to just get their way.
This means that the people they are supposed to serve will be victims of these con tricks and in the end will cause a revolution in slowmotion, no matter how violent the executive will react to this.
At some point the con tricks will undermine every moral validity of any person that is supposed to maintain authority.
What a load of propagandistic nationalist crap.
The government claims to have a monopoly of violence "for the common good" even if every individual is harmed (!). Then it wants every individual to not know anything about how it is going to do that harm. The only reason people can put up with this if they have religious belief that government is somehow formed of superior super-people, not the same mortals that require babysitting as all voters supposedly are. The logic of government power is broken on so many levels, just like your christian testaments. Yet millions are bullied into believing this crap. (Which leads to all sorts of catastrophes - economic, health, wars etc.)
The author is satirizing the government's thinking, reductio ad absurdum style.
Or maybe, we can root out terrorism by bringing progress to the entire human race. OK, but then you still have to deal with domestic terrorism: sniper shootouts, school massacres etc. done by Citizens. How can that be prevented?
One has to give credit to the US govt.'s efforts though: not a single case of terrorism on US soil after 9/11. That's pretty impressive.
One has to give credit to the US govt.'s efforts though: not a single case of terrorism on US soil after 9/11.
Fastest contradiction I've seen in a while.
That's a totally tangential conversation. The first conversation is: is the NSA being lawful?
I think you need to be careful how you ask that question. Lawful may not necessarily what is right, or what is in line with what freedoms citizens expect to carry.
I'm not American, but I think you should approach this issue first by asking if it's moral, then if it's lawful, and then if it works in practice as it is written in law.
Platonic discussions about how the ideal version of America would run are nice, but they're not very useful if a huge section of the stakeholders (members of the intelligence community who may or may not be guilty) have a lot of motivation to exercise their fifth amendment rights. Once it's clear what the law is now, and who (if anyone) has violated it in the intelligence community, people will be freed to speak to law makers and officials and others.
Once we understand where we are - who & what we listen to, how we use it, who we share it with, and why people thought we should (and could, under the law & the constitution), then we can have a conversation about how to move forward. Which of those goals cross lines that we don't want to cross as a country? Which of them are the right idea in the wrong place? Etc. People cannot engage in that kind of conversation with legal action hanging over their head (nor do we want people who will be convicted of gross ethical breaches speaking without that known).
Wait -- that's definitely not true; the Boston marathon bombings and Newtown come to mind. I think you implied in your second paragraph that "dealing with domestic terrorism" is a separate issue -- in truth, I don't think we can properly separate domestic from international. Terrorism is terrorism.
That being said, I'm not convinced we live in a different enough time to warrant the infringement of basic rights, either. While the article might be suggesting that we can't draw a line at all, that's not what I'm suggesting either. I just think we need to carefully balance the issue of safety vs. freedom.
I think a big step towards stopping terrorism would be to stop sticking our huge noses in everyone else's business. Whenever we take from one group and give to another, we create terrorists. This is a pattern we repeat over and over and instead of just minding our own fucking business we, as a country, feel this need to "save" the world from oppression (and hey, why not make some money while we're at it?)
So then what do we do? Up surveillance and carpet bomb countries in the middle east with drones. What does this do? Kill all the terrorists?? I'm willing to bet for every one terrorist we kill in a drone strike, we create 10 more because we killed someone's father or brother (or hell, their dog).
> One has to give credit to the US govt.'s efforts though: not a single case of terrorism on US soil after 9/11. That's pretty impressive.
Boston bombing? A citizen bomb strike is a terrorist act, generally. And the US government didn't do shit about it because they are completely incompetent. Our government consists of a large number of baboons spending our own tax dollars to instigate, fund, and at the same time fight terrorism all while chipping away at our rights little by little.
Yay, go team.
That's an insane conclusion. There have been plenty of border skirmishes that haven't resulted in greater aggression. Those are cherry picked data points.
You cannot "retaliate" against terrorism any more than you can retaliate against car crashes and deaths from cancer.
Today every terrorist with access to a pocket Constitution
Do people in the IC assume that terrorists want to harm us because our freedoms?
Does the wholesale interception of electronic communications based upon the premise of someone might be a terrorist make us any safer?
The Ft. Hood shootings, the Boston bombings, and other evil acts, were not prevented by any of the un-American spying by the alphabet gangs, furthermore, when viewed with an objective eye, acts of terror have actually decreased in the last few decades. Some may argue the point that this reduction is a direct result of the omnipresent intrusions by the Five Eyes crew, and if so I'd like to hear some reasonable explanations as to why some rather major attacks have occurred in spite of the spying.
http://www.johnstonsarchive.net/terrorism/wrjp255a.html
http://www.jewishvirtuallibrary.org/jsource/Terrorism/terror...
Seriously, is the article supposed to be a joke? How can any part of a covenant between a government and its people be considered to be Top Secret?
The irony of this is that the most strident critics of such authoritarianism are precisely the kind of people who mindlessly characterize these things as "our freedoms".
And no. The IC is not under such a misconception. The IC regards terrorists as enemies precisely because they know the terrorists are less interested in our magical "freedoms" and more in the reality of how the military and industry will happily, say, invade Iraq to get what they want.
The privacy debate is just a way to keep us from discussing the larger problems.
Yes, that's exactly the author's point.
Seriously, is the article supposed to be a joke?
No, it's a criticism of Baker's point of view that the limits of intelligence can't be discussed because it would help those it's trying to surveil.