Why Isn't the Fourth Amendment Classified as Top Secret?

http://www.theatlantic.com/politics/archive/2014/03/why-isnt-the-fourth-amendment-classified-as-top-secret/284439/

by deepblueocean • 12 years ago

167 83 12 years ago

oceanstone• 12 years ago

"Who will govern the governors? There is only one force in the nation that can be depended upon to keep the government pure and the governors honest, and that is the people themselves. They alone, if well informed, are capable of preventing the corruption of power, and of restoring the nation to its rightful course if it should go astray. They alone are the safest depository of the ultimate powers of government."

Thomas Jefferson

6d0debc071• 12 years ago

"It is the common fate of the indolent to see their rights become a prey to the active. The condition upon which God hath given liberty to man is eternal vigilance."

- John Philpot Curran, 1790 (attributed by Lord Denning, 1988)

pedalpete• 12 years ago

I'm not sure I understand your quote, and if is a rebuttal or agreement with the above quote.

efoto• 12 years ago

The scenario doesn't seem like a far fetched one indeed. Modern society witnessed several attempts to actually implement it, Stalin's USSR comes to mind.

Crito3• 12 years ago

Between this article, yesterdays article about the black-market/drug-trade, and his recent articles on torture, Conor Friedersdorf has really been knocking the ball out of the park recently. I'm going to have to keep an eye open for more articles from him.

pm90• 12 years ago

The problem is a difficult one, and using the imagery of the righteous founders does not help the debate. Remember that they lived in a different time, where it would have been much more harder, and the scale would have been much lesser, of terrorist acts that can be carried out. I'm not saying either way is better, just that its not a simple choice, and there might be other choice as well.

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.

joe_inferno• 12 years ago

Nice try, Obama

vezzy-fnord• 12 years ago

OK, but then you still have to deal with domestic terrorism: sniper shootouts, school massacres etc. done by Citizens.

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.

throwaway344• 12 years ago

This list directly contradicts your last sentences. http://en.wikipedia.org/wiki/Terrorism_in_the_United_States#...

Domenic_S2• 12 years ago

How can that be prevented?

That's a totally tangential conversation. The first conversation is: is the NSA being lawful?

ThatGeoGuy• 12 years ago

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.

brdd• 12 years ago

"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."

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.

JetSpiegel• 12 years ago

The US Government certainly doesn't separate between the two, since it uses that excuse to spy on their own citizens.

dllthomas• 12 years ago

In the wake of the Boston bombings, someone said that clearly those events show that we need to interpret the Constitution more loosely and give our government more power. This makes sense - our founding fathers never could have imagined terrorists with access to black powder.

orthecreedence3• 12 years ago

We have to remember that our founding fathers were terrorists in the eyes of the British.

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.

joyeuse6701• 12 years ago

Retaliation is a real problem, when you don't crush your enemy. U.S. foreign policy didn't have to punish Japan for it's Manchurian expansion, but it resulted in Pearl Harbor. Japan absolutely completely had to be destroyed brick by brick for that nation to yield. No Japanese terrorists since. Other incidences of unprovoked and unchallenged acts: see Crimea and Nazi annexations.

orthecreedence3• 12 years ago

Why classify it when nobody bothers to read it anymore anyway?

higherpurpose2• 12 years ago

There are ways in which the First, Second, and Fifth Amendments help to inform terrorists too.

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...

c0ur7n3y• 12 years ago

The executive seems to have put a higher priority on protecting the people than upholding the constitution, which is not consistent with the oaths they take. The cynical take is that this another simply another consequence of the influence of money on politics. It's simply more profitable to "protect people". You see, when you uphold the constitution, nobody gets paid.

Domenic_S2• 12 years ago

At that level, one doesn't care about money in the way you're thinking. One cares about power (money naturally follows).

nickff• 12 years ago

"It's simply more profitable to "protect people"."

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.

lotsofmangos2• 12 years ago

“There was only one catch and that was Catch-22, which specified that a concern for one's safety in the face of dangers that were real and immediate was the process of a rational mind. Orr was crazy and could be grounded. All he had to do was ask; and as soon as he did, he would no longer be crazy and would have to fly more missions. Orr would be crazy to fly more missions and sane if he didn't, but if he was sane he had to fly them. If he flew them he was crazy and didn't have to; but if he didn't want to he was sane and had to. Yossarian was moved very deeply by the absolute simplicity of this clause of Catch-22 and let out a respectful whistle.

"That's some catch, that Catch-22," he observed.

"It's the best there is," Doc Daneeka agreed.”

slg2• 12 years ago

I understand this type of argument, but it is somewhat faulty. I think we can all agree that the intelligence community can't operate with 100% transparency. They can't exactly do their job if they have to specifically tell their targets that they are being targeted. The opposite is also true. None of us want these organizations to operate in complete secrecy without having any idea what they are legally allowed to do.

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.

higherpurpose2• 12 years ago

That's the problem, while you say we shouldn't use the argument that "spies need 100 percent transparency", they do pretty much use the opposite argument, that we can never know anything about what they're doing, often even their overseers, because it would "endanger national security".

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.

slg2• 12 years ago

That isn't a far comparison to make because the British government taking my stuff deprives me of that very stuff. The US government making a copy of my digital stuff doesn't deprive me of my digital stuff.

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)?

saraid2165• 12 years ago

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?

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.

Zigurd3• 12 years ago

somewhere in that _huge gap_ between those two options

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.

pdonis4• 12 years ago

There is no military threat that can touch US territory.

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.

DannyBee3• 12 years ago

I've read a lot of what Stewart Baker has written over the years in his various capacities, and i've just never been impressed with either his logic, or his arguments.

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.")

rockyleal• 12 years ago

Ad Hominem

cheald2• 12 years ago

Criticism of a writer is only argumentum ad hominem if that criticism is an attempt to invalidate the the writer's statement by means of questioning his authority, which is certainly not what the OP was doing. Discussing the author's qualities outside of a debate of of the article's thesis is totally in-bounds.

DannyBee3• 12 years ago

I don't think this means what you think it means :)

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.

Terr_• 12 years ago

You've got it backwards. Compare:

"Because he's a nitwit, his arguments are wrong." = Ad Hominem

"Because his arguments are wrong, he's a nitwit." = Not Ad Hominem

ryguytilidie2• 12 years ago

Congratulations for using a word you don't know the definition of!

stephenbez• 12 years ago

I always thought it was funny: On the old http://www.volokh.com/ site, most blog posts would have a lively debate in the comments. But every post by Stewart Baker had comments turned off.

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.

superuser2• 12 years ago

He also doesn't understand that his techniques are simply ineffective. Keeping surveillance and its limits secret has not stopped anything from happening.

... 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.

DannyBee3• 12 years ago

Read his posts on volokh, etc. It's not satire.

Crito3• 12 years ago

Baker, the person DannyBee is talking about, is the person that Connor (the author of the article) is mocking.

deciplex• 12 years ago

I think this is an example of why American exceptionalism is so dangerous. If other countries were to implement policies that Baker has proposed, put in place, followed, etc., then it would be bad, and I suspect Baker would be able to recognize the badness. But America can do it because, well, America is already the Land of the Free, didn't you know? So obviously those abuses can't happen in America, because America is the Land of the Free.

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.

oleganza• 12 years ago

"Transparency is, in that sense, terror-enabling."

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.)

mullingitover• 12 years ago

whoosh

The author is satirizing the government's thinking, reductio ad absurdum style.

D9u• 12 years ago

  Today every terrorist with access to a pocket Constitution

The above sentiment leans towards labeling any who dare possess a pocket constitution as potential terrorists, which is absurd.

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?

talon88• 12 years ago

It's written at least slightly tongue-in-cheek...

saraid2165• 12 years ago

Do people in the IC assume that terrorists want to harm us because our freedoms?

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.

hencq• 12 years ago

The above sentiment leans towards labeling any who dare possess a pocket constitution as potential terrorists, which is absurd.

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.

lotsofmangos2• 12 years ago

Here's some context - http://www.emptywheel.net/2013/10/02/eff-the-fourth-amendmen...

Yaa101• 12 years ago

The current executive class is extemely weak because it resorts to con tricks for fighting corruption, they are not able to fight it by playing along the rules.

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.

mindstab• 12 years ago

I thought he was joking at first, as in satire that shows how silly the rest of the "secret laws" are (like NYC's classified FOI system).

maldeh• 12 years ago

From a policy standpoint, I like to think of the Senate Intelligence Committee as a good-faith attempt at providing "sufficient statistics" of otherwise sensitive data -- having trusted elected officials peruse classified information, collate it into the essential set of decisions the public might formulate should they have full access, then let the public debate proceed along the transformed decision space.

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.

joesmo• 12 years ago

'"Retroactive classification can even reach documents that are available in public libraries, on the Internet, or elsewhere in the public domain."'

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?

wiml• 12 years ago

It's not a hypothetical; it's a thing that actually happens[1].

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...

snowwrestler• 12 years ago

When laws are passed, there are often little errors in wording or phrasing that might cause undesirable side effects. So the Congress often passes "technical fix" bills that do nothing to change the substance of the law, but simply adjust wording to better achieve the intended effect.

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.

Why Isn't the Fourth Amendment Classified as Top Secret?

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