• Review: Michael Hayden’s “The Assault on Intelligence: American National Security in an Age of Lies”

    May 19, 2018 // 21 Comments »



    Former NSA and CIA head Michael Hayden’s new book The Assault on Intelligence: American National Security in an Age of Lies wants to be the manifesto behind an intelligence community coup. It ends up reading like outtakes from Dr. Strangelove.

    Hayden believes Trump cannot discern truth from falsehood, and that Trump is the product of too much fact-free thinking, especially on social media (“computational propaganda” where people can “publish without credentials”) being used by the Russians to destroy the United States. Hayden wants artificial intelligence and a media truth-rating system to “purify our discourse” and help “defend it against inauthentic stimulation.” He believes in the “fragility of civilization” as clearly as he believes there is a “FOX/Trump/RT” alliance in place to exploit it. Under Trump “post-truth is pre-fascism, and to abandon facts is to abandon freedom.” Hayden claims Trump has a “glandular aversion” to even thinking how “Russia has been actively seeking to damage the fabric of American democracy.”

    Seriously.

    Salvation depends on the intelligence community. Hayden makes clear, ominously quoting conversations with anonymous IC officers, that no one else is protecting America from these online threats to our precious bodily fluids. He warns “the structures we rely on to prevent civil war and societal collapse are under stress.” The IC on the other hand “pursues Enlightenment values [and] is essential not just to American safety but to American liberty.”

    Hayden writes he reminded a lad fresh to the IC “Protect yourself. And above all protect the institution. American still needs it.” He has a bit of advice about the CIA: “We are accustomed to relying on their truth to protect us from foreign enemies. Now we may need their truth to save us from ourselves.” The relationship between Trump and the IC is, Hayden threatens, “contentious, divisive, and unpredictable” in these “uncharted waters for the Republic.”

    The Assault on Intelligence: American National Security in an Age of Lies is blowing ten dogs whistles at once. Arise ye patriots of Langley and Fort Meade!


    Yet for all his emphasis on truth, Hayden is shy about presenting actual evidence of the apocalypse. You are left to believe because Hayden says you must. To disbelieve is to side with Putin. The best we get is executive summary-like statements along the lines of “There is clear evidence of what I would call convergence, the convergence of a mutually reinforcing swirl of Presidential tweets and statements, Russian influenced social media, alt right websites and talk radio, Russian ‘white’ press like RT and even mainstream U.S. media like Fox News.”

    With that established, Hayden informs us when the IC tried to warn Trump of the Russian plot, he “rejected a fact-based intel assessment… because it was inconsistent with a preexisting world view or because it was politically inconvenient, the stuff of ideological authoritarianism not pragmatic democracy.” Comrade, er, Candidate Trump, says Hayden matter-of-factly, “did sound a lot like Vladimir Putin.” The two men, he declaims, are “Russian soulmates.”

    Hayden figures if you’ve read this far into his polemic, he might as well just splurge the rest of his notes on you. Trump is “uninformed, lazy, dishonest, off the charts, rejects the premise objective reality even existed.” Trump is fueled by Russian money (no evidence in the book because the evidence is in the tax returns, Hayden says, as if Line 42 on Trump’s 1040 would read “Putin Black Funds $5mil” and the IRS which does have the tax returns overlooked that.) Trump is an “unwitting agent” of Putin, which Hayden tells us in Russian is polezni durak, so you can see he knows his Cold War lingo. We hear how Wikileaks worked with the Ruskies, how Trump Jr. worked with the Ruskies, about Ruskies inside Trump Tower where they could see the Big Board, how the whole brewhaha over #TakeAKnee was Russian meddling, and how Jill Stein existed to “bleed off votes from Clinton,” every Mueller fan-fiction trope tumbling from the pages like crumbs left over from an earlier reader.


    That’s what The Assault on Intelligence: American National Security in an Age of Lies reads like as a polemic. It also fails as a book.

    There are pages of filler, jumbled blog post-like chapters about substate actors and global tectonics. Hayden writes in a recognizable style that might be called Bad Military, where everything must eventually be tied to some Big Idea, preferably with classical references Googled up to add gravitas.

    So it is not enough for Hayden to state Trump is a liar, he has to actually label Trump the end of the entire body of Western thought: “We are in a post-truth world, a world in which decisions are far more based upon emotion and preference. And that’s an overturning of the Western way of thought since the Enlightenment.” Bad things are Hobbesian, good things Jeffersonian, Madisonian or Hamiltonian. People Hayden agrees with get adjectival modifiers before their names: the perceptive scholar ____, the iconic journalist _____, the legendary case officer ____. It makes for tiresome reading, like it’s Sunday night at 4am and you still have nine undergrad papers on the causes of the Civil War to grade kind of tiresome.

    Hayden is openly contemptuous of the American people, seeing them as brutes who need to be lead around, either by the Russians as he sees it now, or by the IC, as he wishes it to be. Proof of how dumb we are? Hayden cites a poll showing 83% of Republicans and 27% of Democrats don’t believe the IC analysis that Russia meddled in the 2016 election when they damn well should. Part of his proof Russian bots are at work on Twitter influencing conservative minds is the hashtags #God and #Benghazi trended together.

    In our odd times, Hayden is a Hero of the Resistance. Seemingly forgotten is Hayden, as head of the NSA, implemented blanket surveillance of American citizens in a rape of the Fourth Amendment, itself a product of the Enlightenment, justifying his unconstitutional actions with a mish-mash of post-truth platitudes and still-secret legal findings. Hayden also supported torture during the War on Terror, but whatever.

    This book-length swipe right for the IC leaves out the slam dunk work on weapons of mass destruction. Any concern about political motives inside the IC is swept away as “baseless.” Gina Haspel, who oversaw the torture program, is an “inspired choice” to head CIA. Hayden writes for the rubes, proclaiming the IC produces facts, when in reality even good intel can only be assessments and ambiguous conclusions.


    That people so readily overlook Hayden’s sins simply because he rolls off snark against Trump speaks to our naivety. In that men like Hayden retain their security clearances while serving as authors and paid commentators to outlets like CNN speaks to how deep the roots of the Deep State reach. That some troubled Jack D. Ripper squirreled deep inside the IC might take this pablum seriously is frightening.




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    Posted in NSA, Post-Constitution America, Trump

    Satire: NSA Quits Spying on Americans Out of Disgust

    August 26, 2014 // 6 Comments »




    Citing an endless river of filth, vacuous conversations, idiotic Tweets and endless cat videos, the NSA announced it is “freaking done” with spying on Americans.

    The NSA decision came only hours after thousands of analysts, following similar threats at CIA, said they planned to quit and apply for jobs as Apple Geniuses and Best Buy Geek Squad workers.

    Speaking on background, one disgruntled NSA employee said “Go ahead, throw me in jail for an Espionage Act violation, that would be better than doing this job. Right after 9/11, my boss said we had to start monitoring all Americans’ electronic communications to find terrorists. So we did, plugging into Google for tens of thousands of personnel at NSA, and those two interns we assigned to Bing. At first we thought it was an anomaly that 64 percent of all Internet traffic was flowing to ‘BarelyLegalCheerleaders.com’ but the numbers tracked. Most of the rest of the web was shopping during work hours.”

    “And is all you talk about on your cells where you are and what you are doing at that second? Where was the ‘Mohammed, now we blow up the bridge and avenge the brothers’ stuff? No, instead it was 24/7 ‘I’m, yeah, at the mall. I might get an Orange Julius. LOL.’ You people even pronounce the term ‘LOL’ out loud as ‘lull’ as if it was a real word. Do you know what it’s like to listen to that all day? I’d rather clean the toilets at NSA but that job was already filled by some guy named Mohammed who didn’t even have a Facebook.”

    “Hacking into the TOR network was also a disappointment. We expected dirty bomb recipes and blueprints of government buildings being passed around, but instead it was all selfies from ComiCon, Hunger Games fan fiction, and terabytes of cat videos pumped out of Russia by Ed Snowden. That guy really has some free time since blowing the whistle on the NSA. Hah, and now we’re getting out of the domestic spying mission and the dude’s still trying to get NewEgg to ship to a Moscow address. Now that’s a proper LOL.”

    “Still we didn’t give up. Thinking all this Internet wastage was some sort of elaborate al Qaeda spoof, we really drilled down. Our conclusion as briefed to the White House: What the hell is wrong with these people? They spend all day looking at the most disgusting images ever created by humankind, really, really sick stuff. Even the jihadis we were trying to blackmail for looking at porn mostly stayed on meh celebrity bikini sites. The people assigned to the American division now all have PTSD and are in desensitization therapy. NSA even had to create a classified commendation medal to award them just to limit potential workplace-violence and OSHA lawsuits.”

    After a series of late-night meetings between worker reps from NSA and CIA, it was decided to threaten a mass walk-off if high-level action was not taken.

    “Initially the brass were all whining about national security and no more 9/11’s, but then we showed them some of the actual websites you people spend your time looking at. And from work, too. During the day in Washington DC alone 98 percent of the web traffic is from .gov addresses. We see a bunch of those people trying to access The Intercept, Firedoglake and Wikileaks, get blocked by the firewalls, and then spend the next 45 minutes figuring out a way around the software to get to ‘BuffDudes.com’ for the next half hour.”

    “After the bosses saw that, they immediately agreed to the changes requested. Hayden even entered the Cone of Silence and burped up his lunch. And you should see the garbage that guy looks at online for fun. I mean, we did. Whatever.”

    “So,” stated the official NSA spokesperson on background, “until you morons clean up your filthy minds and start planning terrorist stuff online, we will no longer be able to afford the human cost of spying on you. Heck, even if al Qaeda blew up Chicago, about two-thirds of you wouldn’t even notice as long as YouTube stayed online.”

    A spokesperson for the Department of Homeland Security stated her agency would continue to monitor every bit of web traffic, claiming the staff could not get enough of this stuff, and that many airport screeners had volunteered free overtime.



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    Posted in NSA, Post-Constitution America, Trump

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

    June 30, 2014 // 9 Comments »




    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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