Former NSA head Michael Hayden continues to defend the agency from criticism even though he really doesn’t have any stake in the outcome. Maybe an agency man is always an agency man, even after they’ve left for more lucrative private-sector positions. Whatever the reason, Hayden hasn’t backed down on any of his assertions, even as more evidence mounts that the agency has seriously overstepped its boundaries.

Hayden was interviewed this past weekend on Face the Nation. We covered his claim that Snowden is a “traitor” earlier, a claim based on the press’ misrepresentation of Snowden’s letters to Germany and Brazil seeking asylum. [Full transcript here, needlessly marred by an autoplay video.] The usual talking points were deployed, but despite going head-to-head with an interviewer, Hayden still cherry-picked what he would actually respond to.

Interviewer Major Garrett kicked things off by discussing the two recent court decisions on the Section 215 collections, which came to opposite conclusions on the constitutionality of bulk metadata collection. Garrett asked Hayden if relying on a 35-year-old court decision (Smith v. Maryland) is appropriate, considering how much communication technology has changed. According to Hayden, there’s no question about whether that case is relevant. It’s simply what gives the NSA the permission to gather these records. The NSA (along with the FBI and countless law enforcement agencies) has used this ruling for more than three decades and it’s not going to stop now, no matter what one federal judge has said.

Judge Leon ignored precedent. He ignored Smith v. Maryland, the case that you cited. He ignored that 15 FISA judges on over 30 occasions have upheld the lawfulness of this. And then judge Pauley, in the Southern District of New York, within a week issued another warning saying — or another decision — saying that this was inherently constitutional. And judge Pauley relied on precedent. Judge Leon relied on exclamation points throughout his judgment, not precedent.

Pauley may have relied on precedent (as far as Smith v. Maryland was written), but he also relied wholly on the government’s trustworthiness and wrote a largely unskeptical opinion that embraced every half-truth or flat-out lie delivered by the NSA in defense of the Section 215 program.

Next, Garrett asked this question about some of the more “gray area” collections the NSA performs:

Now it’s also been disclosed through Edward Snowden’s leaks that the NSA tapped fiber optic cables abroad to siphon data, circumvented or cracked encryption codes and covertly inserted weaknesses into coding mechanisms. Now, you’re telling me all of that is done in accordance with the Constitution and raises no fourth amendment concerns?

Hayden chose to ignore the majority of the question in order to defend the agency.

As long as it’s done overseas against people not protected by the fourth amendment to the Constitution, Major, the Constitution doesn’t enter into the conversation.

Using overseas cables to grab domestic communications is the agency’s way of circumventing the Constitution to grab what it believes it should rightfully have access to. According to the agency, it’s perfectly legal to spy on every other citizen in the world. After all, if they wanted privacy, they should have become American citizens, right?

But Hayden completely sidesteps Garrett’s question about backdoors, exploits and compromised hardware and broken encryption. The agency can’t defend these actions in terms of legality or constitutionality, so its defenders just ignore the questions, or talk around them. Phrases like “fighting terrorism” or “making the US more secure” are offered up instead of actual answers.

Hayden went on to claim Snowden’s leaks have “infinitely weakened” the NSA. Without a doubt, the leaks have had a negative effect on the agency’s intelligence gathering. But it’s had a much larger impact on the agency’s reputation — and the US government’s. The NSA has so thoroughly compromised encryption, computer hardware and communications technology that a majority of what has been leaked will have a very minimal effect on the NSA’s intelligence gathering. Important, high-value targets aren’t gliding across the visible surface of the internet or utilizing static IP addresses and phone numbers. Everyone knows about the Section 215 program now, but it’s hardly resulted in millions of people dropping their phone service.

The fears the agency claims to have about exposed methods are just a cheap ploy to gather support and play the victim. The deeper, nastier stuff the agency does has yet to be exposed. We got a taste of the NSA’s capabilities for installing persistent exploits in consumer and enterprise-level electronics — and that info, as frightening as it was (i.e., iOS devices can be compromised with a 100% success rate) was a half-decade out of date. What it can do now is certainly even more incredible.

If anything, Snowden’s revelations to this point will have done little more than help excise outdated surveillance programs that were long on data collection but short on value. The NSA (and its former leaders) should show a bit of appreciation for this inadvertent push towards working smarter, not harder.

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