by Patrick Lang (bio below)

After thinking about the NSA domestic intercepts program, I have decided that much of the discussion of this subject misses the point about what has changed in communications surveillance in this country.

Before 9/11 (with a few exceptions) domestic communications surveillance was a matter for the police (FBI et al) under the supervision of the courts. The police were required to provide the appropriate judge evidence which supported the need to inspect someones communication in preparation for a possible court proceeding against that person. The writs issued by such judges had expiration dates and the police were forced by the law to return to the courts periodically to obtain extensions. The police did not particularly like that because it was inconvenient to them, and the police (like everyone else) want to have their lives made as simple and safe as possible. A lot of them would also like to have the citizenry deprived of the right to own guns, a similar thing. Nevertheless, this whole system was part of our JUDICIAL system.

The National Security Agency (NSA) is not part of the judicial system. It grew out of World War 2 codebreaking activities on the part of the armed forces (Enigma, etc.) and continued to grow like the Hydra throughout the Cold War. American government found large scale “exploitation” of Soviet electronic signals to be a comprehensible and worthwhile endeavor, something much more to American taste than the messy, more morally ambiguous business of espionage (HUMINT).

It seems to me that all the talk of warrants and the FISA law is irrelevant. The decision to use NSA against US domestic communications had nothing to do with the courts or the FISA law. It was simply a decision to tell NSA to turn its antennae inward rather than outward. NSA is essentially a military organization although it employs many civilians. It is part of the Department of Defense (DoD). When given an order, it obeys with no quibbling about court orders, warrants, writs, expiration dates, justification. etc.

Having been told to perform such operations, NSA and other element of DoD will simply continue them indefinitely, receiving tasking from intelligence centers and consumers routinely and collecting information as they did for half a century against the Soviets. “Consumers?” Hmmm…

This leaked to the press because people at NSA decided that their professional habit of silence was trumped by the implications of this massive a change in the privacy rights of Americans.

Pat Lang

Reference: NYT

Below is “The ‘Threat’ and our Liberties,” my response to some comments that the above piece provoked:

From a couple of notes I received about the “NSA” piece above, it appears that there is some misunderstanding abut my constitutional views. I would have thought that unimportant to anyone but me, but I see there is some concern about it, for which I thank those involved.

I describe myself as a libertarian conservative. I think the Constitution of the United States works just fine and that it created a systen of government designed to limit power, not to expand it. The separation of power among the three branches of the federal government and then between the federal government and the states should be seen, I think, as retaining the balance of governmental power in the hands of the states. We should always remember that the Constitution is the “creature” of the states, not the other way around. Lastly, I would agree with Jefferson and Madison in the Kentucky and Virginia Resolutions that creeping expansionism of power on the part of the Federal government should be viewed with suspicion. Lastly, as Mr. Jefferson rightly asserted, the “people” are sovereign, not the president of the United States. He is not a king, not an emperor not anything more really than the person who runs the Executive Branch.

War time assertions of greatly expanded presidential power are nothing new. The sainted 16th president of the US; suspended “habeas corpus,” imprisoned thousands without trial, tried civilians before “military commissions” later found by the Supreme court to have been unconstitutional (ex parte Milligan), dissolved legislatures to keep them from voting, created a new state without much authority in law, jailed newspaper editors whose writings he disliked, etc. Lincoln believed that he was justified in doing these things because the country faced an “existential” threat. That was the basis of his assumption of unusual and in many cases dubious powers.

Much the same claim is maintained now. The Bush Administration claims that its actions are justified because the country faces an “existential” threat. It maintains that the international Jihadi phenomenon threatens the very existence of the United States and on that basis it insists that it has the right to do “whatever it takes” to keep the United States from being destroyed in the coming years. It maintains that a situation of “total war” prevails and that any amount of suspension of citizen’s rights is justified in the national defense. It also tells us that this situation may last indefinitely in a kind of “state of siege” condition.

A couple of problems with that view:

1. It is open ended. On exactly the same basis, the often tyrannical governments of the Arab World have justified since 1947 the need to suspend “due process” and citizen’s rights because “the nation” must be protected from the Zionist threat. I thought we were against this kind of thing.

2. The Jihadis are not an “existential threat” to the United States. A great many Americans were overcome by fear after 9/11. People in my profession(s) had assumed that everyone in America knew that the world was not a safe place and that America was not an exception to that really basic fact. It is clear now that we were wrong in thinking that. The events in New York City and the capital were catastrophic and tragic in the extreme, but they did not constitute an “existential threat” to the United States and the Jihadis still do not pose such a threat to the existence of the United States of America. What are they? They are a few thousand religious fanatics, backed by the money of a handful of really crazy rich people. They have been driven from their bases by our armed forces, harried across the world and continuously pursued by the security services of a great many countries. Our own security services have dealt severely with anyone within the USA who looked liked they were actually thinking of doing something violent. Presumably these fanatics have not abandoned their hope of inflicting grievous harm on the USA if they could manage it. It is worthwhile to consider the limits of their capabilities in the absolute worst cases. They could destroy a city. This is unlikely, but worth taking seriously because the consequences would be so grave. They could kill everyone on a train. They could attack everyone at a major event. These are the kinds of things they could do. None of those kinds of things constitute an “existential threat” to the United States. There would be a lot of dead people as a result of such attacks, but the country would survive. It would go on and on as a beacon of hope in the world, perhaps man’s last, best hope.

“Do you want to be safe, or do you want to be free?” This question is increasingly asked with some seriousness. The Jihadis are posited to us as an “existential threat” on an open ended basis. They are not, except as a justificatin for re-structuring American into a “security state.” There are other “security states.” None of them are really secure but they are very good at controlling their citizens. It is up to the courts, the Congress and the Sovereign People to decide if they are to be the descendants of those who stood against the King or just more “sheeple” to be herded about.

Are we really going to accept that the instruments of government with which we fought the Nazis and Communists are going to be used to pick apart our lives? Are we really going to become someone’s “subjects?”

Col. Patrick W. Lang (Ret.), a highly decorated retired senior officer of U.S. Military Intelligence and U.S. Army Special Forces, served as “Defense Intelligence Officer for the Middle East, South Asia and Terrorism” for the Defense Intelligence Agency (DIA) and was later the first Director of the Defense Humint Service. Col. Lang was the first Professor of the Arabic Language at the United States Military Academy at West Point. For his service in the DIA, he was awarded the “Presidential Rank of Distinguished Executive.” He is a frequent commentator on television and radio, including MSNBC’s Countdown with Keith Olbermann (interview), CNN and Wolf Blitzer’s Situation Room (interview), PBS’s Newshour, NPR’s “All Things Considered,” (interview), and more .

Personal Blog: Sic Semper Tyrannis 2005 || Bio || CV
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Drinking the Kool-Aid,” Middle East Policy Council Journal, Vol. XI, Summer 2004, No. 2

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