• Does Snowden Know Why the NSA Doesn’t Need Warrants? He Might.

    June 30, 2014

    Tags: , , , , ,
    Posted in: Democracy, Military, Police State, Post-Constitution America




    A funny thing to come out of Snowden’s recent interview with NBC News was his claim that he raised concerns about the NSA’s surveillance of American citizens through channels at the NSA, well before he began disclosing classified documents to journalists like Glenn Greenwald.

    The NSA denied for almost a year any record of Snowden speaking up, though located a single such email only following the recent television interview. It gets complicated, and very interesting, from that point…

    Snowden’s Email to the NSA

    The email the NSA disclosed showed Snowden asked a fairly simple legal question arising from an NSA training session that outlined various legal authorities, from the Constitution on down.

    “I’m not entirely certain, but this does not seem correct, as it seems to imply Executive Orders have the same precedence as law,” Snowden wrote, citing a Hierarchy of Governing Authorities referenced during the training. “My understanding is that E.O.s [Executive Orders] may be superseded by federal statute, but E.O.s may not override statute. Am I incorrect in this? Between E.O.s and laws, which have precedence?”

    “Hello Ed,” came the reply from an NSA lawyer. “Executive orders… have the ‘force and effect of law.’ That said, you are correct that E.O.s cannot override a statute.”

    What the Email Means

    Based on the NSA training he was given, Snowden was questioning which carries more weight within the NSA– an actual law passed by Congress, or an order from the president (an E.O., Executive Order.) The answer was a bit curvy, saying that absent a specific law to the contrary, an order from the president has the force of a law.

    By way of a trite illustration, if Congress passed a law requiring Snowden to eat tuna every day for lunch in the NSA canteen, he’d have to do that, even if the president ordered him to have the tomato soup instead. However, absent a law specifically telling him what to eat, the president’s order meant he would have to eat soup. Of course if Congress did not even know of the president’s order, it could not pass a law countering it.

    Back to 2006

    Hold on to the Snowden question for a moment and let’s go back to 2006.

    In 2006 we knew very, very little about what the NSA was doing, and knew even less about the scope and scale of their surveillance of Americans. That context is important.

    General Michael Hayden, then head of the NSA, gave a talk in January 2006 at the National Press Club. Journalist Jonathan Landay started a back-and-forth with Hayden over the wording and meaning of the Fourth Amendment. Most media outlets played the story as a mockery of Hayden, claiming he did not even know what the Fourth said. MSNBC quipped “Well, maybe they have a different Constitution over there at the NSA.”

    Let’s take another look at the exchange, with a few parts highlighted:

    LANDAY: I’m no lawyer, but my understanding is that the Fourth Amendment of the Constitution specifies that you must have probable cause to be able to do a search that does not violate an American’s right against unlawful searches and seizures. Do you use —

    HAYDEN: No, actually — the Fourth Amendment actually protects all of us against unreasonable search and seizure.

    LANDAY: But the —

    HAYDEN: That’s what it says.

    LANDAY: But the measure is probable cause, I believe.

    HAYDEN: The amendment says unreasonable search and seizure.

    LANDAY: But does it not say probable —

    HAYDEN: No. The amendment says —

    LANDAY: The court standard, the legal standard —

    HAYDEN: — unreasonable search and seizure.

    LANDAY: The legal standard is probable cause, General. You used the terms just a few minutes ago, “We reasonably believe.” And a FISA court, my understanding is, would not give you a warrant if you went before them and say “we reasonably believe”; you have to go to the FISA court, or the attorney general has to go to the FISA court and say, “we have probable cause.”

    And so what many people believe — and I’d like you to respond to this — is that what you’ve actually done is crafted a detour around the FISA court by creating a new standard of “reasonably believe” in place of probable cause because the FISA court will not give you a warrant based on reasonable belief, you have to show probable cause. Could you respond to that, please?

    HAYDEN: Sure. I didn’t craft the authorization. I am responding to a lawful order. All right? The attorney general has averred to the lawfulness of the order.

    Just to be very clear — and believe me, if there’s any amendment to the Constitution that employees of the National Security Agency are familiar with, it’s the Fourth. And it is a reasonableness standard in the Fourth Amendment. And so what you’ve raised to me — and I’m not a lawyer, and don’t want to become one — what you’ve raised to me is, in terms of quoting the Fourth Amendment, is an issue of the Constitution. The constitutional standard is “reasonable.” And we believe — I am convinced that we are lawful because what it is we’re doing is reasonable.


    Reasonable Searches v. Warranted Searches

    The full text of the Fourth Amendment is as follows, broken into two parts for our purposes here:

    The right of the people to be secure in their persons, houses, papers, 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.


    The reporter questioning Hayden, and most everyone else, wrongly conflates “unreasonable” with “unwarranted,” claiming that the only reasonable search is one done under a warrant. That is not true. Cops search people and cars all the time, legally, without warrants. Same thing at the border with TSA and others. New York City has its infamous stop and frisk law.

    There are libraries of case law on this, and yes, courts have generally– but not always– claimed that the same probable cause required to obtain a search warrant is an implied part of a “reasonable” search. But not always.

    One Supreme Court case of interest is Vernonia Sch. Dist. 47J v. Acton. The case involved a student’s refusal to submit to drug testing as a condition of playing high school sports. But take a look at the clarity of precedent in the Court’s opinion (emphasis added):

    Where a search is undertaken by law enforcement officials to discover evidence of criminal wrongdoing, this Court has said that reasonableness generally requires the obtaining of a judicial warrant. Warrants cannot be issued, of course, without the showing of probable cause required by the Warrant Clause. But a warrant is not required to establish the reasonableness of all government searches; and when a warrant is not required (and the Warrant Clause therefore not applicable), probable cause is not invariably required either. A search unsupported by probable cause can be constitutional, we have said, “when special needs, beyond the normal need for law enforcement, make the warrant and probable cause requirement impracticable.”


    What Hayden Knew, Part I

    As head of the NSA, Hayden was not an emotional man, one prone to off-the-cuff remarks, or an imprecision of language. Standing in front of the press in 2006, Hayden knew in great detail the vast scope and scale of surveillance of Americans his agency was carrying out at that very moment, even if his audience did not. Hayden had also been around Washington a long time, and knew political will fades, winds change, and was not about to implicate himself in a violation of the Constitution in front of a room full of journalists.

    Hayden parsed the Fourth Amendment to maintain that under some legal opinions, a government search could be both “reasonable” and unwarranted and still be constitutional. Hayden also clearly referred to his “the authorization,” said “I am responding to a lawful order,” added that “the attorney general has averred to the lawfulness of the order.” He ended by saying “I am convinced that we are lawful because what it is we’re doing is reasonable.”

    What Hayden Knew, Part II

    The law, the statuate Snowden asked about in his 2013 email to the NSA lawyer, as passed by Congress was clear: under the Foreign Intelligence Surveillance Act (FISA), government officials have to prove to the secret intelligence court that there was “probable cause” to believe that a person was tied to terrorism to obtain a search warrant. Warrants, FISA or otherwise, still require probable cause, precisely as the Fourth Amendment states.

    But what if, standing there in 2006, guessing some or all of his NSA’s work would someday become public, Hayden knew he was covered for all the searches he was doing without warrants if he just chose his words very carefully. What if Hayden had an Executive Order from the president in his office safe, a secret legal memo, similar to the memos we now know of by John Yoo that explained how torture was not torture, or the one by David Barron explaining how the president ordering the drone killing of an American was not a violation of the Fifth Amendment’s guarantee of due process. Perhaps that Executive Order Hayden had laid out the legal argument that the NSA’s electronic surveillance of every America constituted a “reasonable” search under the Fourth Amendment. Reasonable searches do not require warrants. The Fourth prohibits only “unreasonable searches.” All the push and shove over unwarranted searches was just a smokescreen, a distraction for the public. It was all legal without a warrant anyway.

    At that point everything Hayden said– that what the NSA was doing was lawful because it was reasonable– makes chilling sense.

    What Snowden Knows

    Edward Snowden and the journalists working with his materials are smart cats. Over the past year they have had a curious knack for releasing a document, watching the president lie about it (“we don’t read Americans’ emails”) and then releasing another document exposing the lie.

    Does Snowden know of, or strongly suspect, there is a secret Executive Order legalizing everything the NSA is doing by claiming the searches are “reasonable,” and thus no warrant is needed to conduct them on a mass scale? Did something in his NSA training hint at that, and, through his email inquiry asking about the relative strength of an Executive Order versus a law (in the case, the FISA law requiring probable cause for warrants to be issued), was Snowden trying to tease that out of the NSA lawyer he wrote to?

    Ask Obama This Question

    So let’s make it simple: Journalists with access to the president, ask this question directly: Is there an Executive Order or other document stating that the NSA’s surveillance of American citizens is “reasonable,” and thus no warrant is required for the surveillance to continue and remain Constitutional under the Fourth Amendment?

    Yes or No, Mr. President. Edward Snowden and the rest of us would like to know.



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  • Recent Comments

    • pitchfork said...

      1

      Executive Order XXXXXX= we don nee no stinkin warrants..we’ll do what the fuck we want to do.

      Notwithstanding all the excellent comments at Firedoglake when you posted this essay there, I’ve come to the conclusion that Legal Imperialism will do whatever it takes to keep the status quo of the IC..including a coup d’etat…er…wait..it’s already happened..DOH!

      http://cyberlaw.stanford.edu/blog/2013/12/common-law-coup-detat-how-nsas-creative-interpretations-law-subvert-congress-and-rule

      Nevermind.. nothing will stop these bastards short of complete coast to coast insurrection.

      06/30/14 12:45 PM | Comment Link

    • Rich Bauer said...

      2

      Pitch,

      These clowns have to do something to justify wasting the taxpayers’ money. Just as these idiots handed the 9-11 terrorists the keys to our own destruction, the ABSOLUTE POWER of the spy program will be used against US. Even FACEBOOK figured that out.

      06/30/14 1:06 PM | Comment Link

    • pitchfork said...

      3

      Rich Bauer said…
      quote”the ABSOLUTE POWER of the spy program will be used against US. Even FACEBOOK figured that out.”unquote

      Indeed. FB’s latest “social contagion” experiment should result in prosecutions. These corporate scumbags will do ANYTHING, to increase profits.

      Unfortunately, there is an even greater threat to citizens by the DOD’s funding universities to study “groups and individuals who are now labeled the same as FB…ie.. “SOCIAL CONTAGIONS WHO WILL CAUSE CIVIL UNREST”

      http://dissenter.firedoglake.com/2014/06/29/podcast-nafeez-ahmed-on-pentagon-funded-research-into-social-contagions-thatll-cause-civil-unrest/#comments
      The DOD now claims certain citizens are a “contagion”. Like a contagious disease. And we PAYED for it. Just like we are PAYING to arm the DHS and every other alphabet agency to KILL US.

      These bastards never cease to amaze me at their complete acquiescence to evil. Well, all I can say is yeah..some may actually become what the DOD says they are…because the USG MADE them. All I know is the USG has completely lost it’s legitimacy now.

      Hey, speaking of evil..look what turned up today.
      quote” Just weeks before Blackwater guards fatally shot 17 civilians at Baghdad’s Nisour Square in 2007, the State Department began investigating the security contractor’s operations in Iraq. But the inquiry was abandoned after Blackwater’s top manager there issued a threat: “that he could kill” the government’s chief investigator and “no one could or would do anything about it as we were in Iraq,” unquote

      http://www.nytimes.com/2014/06/30/us/before-shooting-in-iraq-warning-on-blackwater.html

      But the inquiry was abandoned because Blackwater threatened to shoot the investigator. And the Iraq embassy dudes got scared..and scuttled the investigation. sheeezus. You can’t make this stuff up.

      bartender…make it a double. And turn on the Kardashians. I need a laugh.

      06/30/14 2:03 PM | Comment Link

    • Helen Marshall said...

      4

      Forget the Kardahshians…just watch My Cousin Vinny and have that double. At this point there is not much else to do.

      Cheers.

      06/30/14 5:09 PM | Comment Link

    • Rich Bauer said...

      5

      “Blackwater’s top manager there issued a threat: “that he could kill” the government’s chief investigator and “no one could or would do anything about it as we were in Iraq,”

      This also applies to Hawaii. (see Dirty Deedy)

      06/30/14 5:59 PM | Comment Link

    • Rich Bauer said...

      6

      06/30/14 6:02 PM | Comment Link

    • pitchfork said...

      7

      Hey Helen..funny you should recommend that one. I just watched it a few days ago. Had the double. Now I’m ready to watch Bedazzled.

      06/30/14 6:57 PM | Comment Link

    • pitchfork said...

      8

      Geeezushchrist, is that murderer still on trial? What a load of crap. He should be in prison by now.

      06/30/14 6:59 PM | Comment Link

    • Ricardo said...

      9

      this: Watch for a 50% correction in the USD as it seilds into national economic depression .Peter, I’m a currency trader by profession and this year (in fact I have made my whole year, that’s why I am a little more active on blogs these days) most traders started the year (05) with the overwhelming expectation the US Doll was heading south in a big way. In fact it went the other way.People don’t look at current a/c deficits as a harbinger to currency direction. There are many reasons to sell or buy currencies. The prime one is whether investing in a particular currency compared to another fulfills total return expectations. The US doll this year and most probably next is looking good again. I am going to remind you of your prediction at the end of 06.It is no use talking big numbers like saying the US is 8 trillion in debt when you aren’t putting it into any context. The only way to do that is by expression as a ratio to GDP. The US is now an US$12 trillion economy. There doesn’t seem to be any ration way out of line.The printing presses.Yes that is a little concerning for most of the G20 countries but the US is not spewing out any more inflationary pump priming than say Japan or the US. IF the were the long end of the bond would be taking a hit. In fact the long end has been fairly well behaved and looks set to offer investors some good returns, as yield will probably drop. If the was massive liquidation as you suggestion the long end of the bond market would be showing signs of distress. It isn’t and in fact it is showing to opposite.There are signs of inflationary pulses through the world but the US is showing the least signs. Next time take a look the gold price expressed in each currency to see where the problems are. Japan and Europe are the problem by using gold as the numeraireDidn’t spell check, as I have to pick to kid up.Seeya and good luck with your spite problem.

      07/12/14 6:55 AM | Comment Link

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