
Why Isn't the Fourth Amendment Classified as Top Secret? - deepblueocean
http://www.theatlantic.com/politics/archive/2014/03/why-isnt-the-fourth-amendment-classified-as-top-secret/284439/
======
DannyBee
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...](http://www.9-11commission.gov/hearings/hearing6/witness_baker.pdf)

("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
Ad Hominem

~~~
Terr_
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

~~~
alexqgb
Bingo.

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.

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

~~~
d0ugie
Me neither, but I imagine he's a blast at parties..

~~~
schrodinger
Come on, that's unwarranted. Don't be a jerk.

------
slg
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.

~~~
higherpurpose
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.

~~~
slg
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)?

~~~
Zigurd
> _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._

So, "Information wants to be secretly collected?" That has a certain symmetry
to it.

~~~
res0nat0r
This sounds like the "information want's to be free" argument people use here
to justify copying movies and music, shouldn't it also then apply to your
phonecall data? It's all just bits right?

~~~
arg01
Sure, but those making that argument would be right to point out the NSA
should be releasing all their data under the same logic.

------
higherpurpose
> 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...](http://dailycaller.com/2014/03/05/nsa-chief-says-legislation-
to-stop-media-leaks-is-only-weeks-away/)

------
Crito
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.

------
efoto
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.

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snowwrestler
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.

------
maldeh
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.

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

------
c0ur7n3y
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_S
At that level, one doesn't care about money in the way you're thinking. One
cares about _power_ (money naturally follows).

------
lotsofmangos
“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.”

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joesmo
'"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
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...](http://www.boston.com/news/nation/articles/2004/07/05/translator_in_eye_of_storm_on_retroactive_classification/?page=full)

------
Yaa101
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
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).

------
oleganza
"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
_whoosh_

The author is satirizing the government's thinking, _reductio ad absurdum_
style.

------
pm90
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.

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

------
D9u

      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.johnstonsarchive.net/terrorism/wrjp255a.html)

[http://www.jewishvirtuallibrary.org/jsource/Terrorism/terror...](http://www.jewishvirtuallibrary.org/jsource/Terrorism/terror1952_1989.html)

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?_

~~~
saraid216
> 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.

