NSA (AND ADMINISTRATION) ILLOGIC
By Attorney Jonathan
Emord
Author of "The Rise of Tyranny" and
"Global Censorship of Health Information" and
"Restore The Republic"
July 1, 2013
NewsWithViews.com
The argument in defense of domestic espionage given by the Obama White House, the NSA, and the DOJ dissembles and is rife with illogic. On the one hand, the White House, DOJ, and NSA have all contended that Edward Snowden’s revelations concerning NSA spying on Americans are acts of high treason that imperil American security by enabling terrorists to evade detection, yet on the other hand, the President says that he perceives no need to speak with Russian dictator Vladimir Putin or Chinese dictator Xi Jinping concerning extradition of Snowden and no need to scramble jets to take down any aircraft that transport him outside of Russia. If Snowden’s acts constitute not only acts of treason but also acts that imperil the nation, shouldn’t every measure be undertaken to capture and try him? Isn’t the failure to fully and faithfully execute the laws in the presence of such a threat an inaction which falls beneath the President’s irreducible constitutional requirements? Or is it that Snowden’s revelations, while the result of unlawful conduct, constitute more of a political embarrassment for the Administration than a true threat to national security? Moreover, years ago press reports identified a change in tactics by Osama bin Laden to evade detection. He and his network reportedly reduced reliance on digital communication in favor of couriers precisely to evade detection by American intelligence. Are we to believe that the shift in tactics the Administration now raises is one for which NSA lacks countermeasures despite the fact that the same or similar changes in terrorist communication tactics occurred years ago?
The political spin masters at the White House, DOJ, and NSA have succeeded in obfuscating the underlying truth: that the federal government has been surveilling millions of Americans private communications without satisfying the Fourth Amendment standard of probable cause, albeit with the acquiescence of the FISA courts. They have shifted attention away from the abuses of the NSA surveillance program (the data mining of millions of Americans phone records and email transmissions). They have done so by emphasizing that Snowden is a traitor and that his revelations have caused international terrorists to alter their communication methods, making discovery of their intentions and actions more difficult. The spin may deflect attention away from the abuses for a time, but the fact remains: The federal government has been spying on millions of Americans without probable cause that they are actively involved in a conspiracy to commit terror.
In other words, the federal government has knowingly and willfully violated the Fourth Amendment not once but millions of times. Who is to account for those violations? The President admits foreknowledge, and surely the buck stops with him.
Moreover, what will become of NSA Director Clapper’s denial under oath in response to Senator Ron Wyden’s question concerning whether millions of Americans were surveilled by his agency? That false testimony is perjurious but also, in the absence of any correction by the Administration, reveals Administration complicity in it and a campaign of misinformation concerning domestic surveillance, refusing requested information even to key members of Congress. Who, if anyone, will be made to account for those law violations?
The argument that Snowden’s revelations have caused a sudden shift in terrorist tactics that harms U.S. efforts at detecting terror does not add up. It is hard to believe that NSA’s only, or most effective, way of discerning the actions of terrorists is through surveilling millions of entirely innocent American citizens. Indeed, that would seem an extremely indirect, ineffective, and costly way and a way far afield from the international focus of the Foreign Intelligence Surveillance Act. It is also hard to believe that NSA would trust so many private contractors, like Booz Allen, with access to, or the potential for access to, information germane to its spying program if it feared that revelations of this sort would be ruinous to foreign intelligence gathering. Moreover, if indeed NSA has intelligence revealing that terrorists have recently changed their tactics to avoid use of digital communication (a pattern that the national media reported Osama bin Laden had adopted for Al-Qaeda years ago), then surely that same intelligence reveals the change (e.g., to couriers). Of course, cessation of communication would be indicative of a change, but the NSA professes that it is aware of “changed tactics,” which bespeaks greater knowledge than simply an absence of detectable chatter.
If there is intelligence concerning a move to rely on other methods then, presumably, there are in place means capable of discerning what those other methods are (and, therein, of uncovering terrorist plots communicated through those other methods). In any event, since at least the mass media coverage of bin Laden’s reported shift from cell phones to couriers, NSA has been on notice that terrorists resort to non-digital means of communication and, so, undoubtedly the NSA has itself developed alternative means for acquiring foreign intelligence.
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That, at any rate, is the historic mission of espionage, to adapt to meet ever changing threats but to do so within the bounds of the NSA’s enabling act and the Constitution. In the end, to combat terror NSA must evolve to meet an ever changing threat; it must expect that its enemy will always employ new tactics. The primary legerdemain in the Administration’s defense of NSA spying is the false underlying assumption that NSA somehow relies on a static and limited information collection methodology, digital communication data mining (it does not), and that the constitutional rights of American citizens may justifiably be violated in pursuit of intelligence (they may not). NSA knows well that those who seek to commit acts of terror never cease to invent new means to plot and carry out their plots. It is the duty of those engaged in the nation’s anti-terror efforts to evolve by constantly adopting new countermeasures, but that duty must be performed consistent with the rule of law and under the constraints of the Constitution.
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