December 20, 2005

NSA Operations Illegal?

This is a follow-up to my previous article ("NSA - Spying on Americans?"). The article was posted on several websites and blogs. For the most part it was well-received, but there are a few naysayers that refuse to believe that people in government might have some integrity and actually conduct these sensitive operations within the guidelines of the law. You know the type - "I have never done any of this for a living, but I am ever so smarter than any of you who have." But I digress.

The main source of the more savage comments appears to be this passage:

Is all this against this law? I'm not a lawyer, but I doubt it. Having spent considerable time doing this for a living, I cannot contemplate NSA (or the parent Defense Department) undertaking this "special collection program" without concurrence of the NSA's General Counsel. I would be surprised if the Justice Department was not consulted as well.

I don't make this stuff up. In virtually every intelligence operation, especially these special access programs, the in-house lawyers are involved at every stage of the planning and sometimes the execution. It's a requirement, not an option. As I said, in the case of NSA, violation of USSID 18 is almost always a career-ending event. No lawyer would sign off on an operation that violated the law or regulations.

Almost all of those making comments cite the fact that all the lawyers (the NSA and DOD General Counsel and probably the Justice Department as well) who reviewed this particular operation are in-house, part of the executive branch and thus incapable of refusing to approve an operation authorized by the President. That's just not true. If we were going to ignore them, why have them? Again, from personal experience, I can tell you that they at times do disapprove operations that would violate the law. Anyone who claims otherwise is either unaware of how these things work or is intentionally being disingenuous.

If you have a problem with this operation, define your objection. Do you object to NSA intercepting foreign communications that originate or terminate inside the United States between known or suspected terrorist entities, or do you object to them doing it without a court order?

I have no problem with the former, some with the latter.