Sunday, July 15, 2007

NSA Electronic Surveillance

Over the past year, I have watched with considerable interest the debate and HYPE over Warrantless Wiretaps. There has been much discussion and cussing about the invasion of privacy and spying on the Citizens of the United States. It occurred to me that most people don't understand the NSA Electronic Intercept Program. Nor do most people understand that they are daily subjected to more intrusive programs, and that they pay for the intrusion, willingly.

Ironically we complain about Warrantless Wiretaps conducted by the Government (NSA and others). While, on the other hand, we are willing to install ADT® security systems in our homes and LoJack® and/or OnStar® blue buttons in our automobiles. Why the difference? ADT® allows their operators to use voice communication without a phone (the arming panel contains a microphone) and both LoJack® and OnStar® constantly track your vehicle by computer.

Does this make sense? We don't complain about Warrantless Intrusions ADT®, LoJack® or OnStar® make daily, while tracking our every move and listening to our private conversation. In fact we Pay these companies to do just that. NSA Electronic Interceptions of communications is by way of Public Access Points. How ironic and utterly ridiculous to complain about any Government Program which does not enter either our homes, businesses and automobiles, while paying for others to do exactly that.

Remember that NSA Electronic Interceptions are through Public Access Points. Therefore apply the label "Wiretapping" to what the NSA Intercept Program does, is totally inaccurate and misleading. Unlike ADT®, LoJack®, OnStar® and other similar services, which we invite and pay to come into our most private spaces, NSA Electronic Intercepts are from Public Accessible points and the Public Radio Frequencies. That's an important distinction.

The next time you hear the hype of the ACLU, Liberals and others, remember all these programs are intended to protect our lives, property and the right to the pursuit of happiness. Congressional Committee Oversight of the NSA sets the acceptable boundaries. It is far less an invasion of privacy than the Commercial Services we pay for. Continue reading for a better understanding of the parameters under which the NSA Electronic Intercept Program works for all of us.

Under the Constitution of the US, we have two independent and totally separate provisions for dealing with (1) actions against the Government and (2) actions against its Citizens. Actions against the Government is the primarily Military based method of gathering Foreign Intelligence. Actions against its Citizens is the primarily Civilian based method of gathering Criminal Intelligence.

The Military based NSA program purpose is to gather Foreign Intelligence. The Constitution grants authority for both Military and Foreign Intelligence activities to the President. Warrants are not required for these operations for much the same reason that CB Radio transmissions do not require a warrant. In fact the NSA has no standing in Civilian Courts because it is not a prosecutorial program. The NSA cannot bring charges against parties and therefore cannot obtain a warrant from any Civilian Court.

The NSA conducts three types of electronic surveillance activity
  1. Communications originated by Foreign Located parties and ending with Foreign Located parties
  2. Communications originated by Foreign Located parties and ending with Domestic US Located parties
  3. Communications originated by Domestic US Located parties and ending with Foreign Located parties
Foreign is defined as located outside US Politically controlled territory. Domestic US is defined as located inside US Politically controlled territory.

It is generally agreed that Item #1 does not require any warrant. Item #2 and #3 are further limited such that at least one of the parties be identified as Terror Connected. There is no evidence that the NSA is conduction any electronic monitoring that involves entirely Domestic US to Domestic US Locations.

The Civilian based prosecution of persons in the US (principally US citizens) operates under the authority of the various law enforcement agencies with oversight from the various Courts. The Constitution protects those parties in the US by prohibiting "Unreasonable Search And Seizure" and the Courts decide the conditions necessary for the issuance of warrants to gather evidence necessary to bring charges in a Civilian Court. Civilian Law enforcement agencies have no standing to bring charges in the Military Courts.

During the Clinton years, sharing of information between the Military and Civilian Law enforcement was prohibited. "The 9/11 Commission Report" referred to this lack of shared information between Domestic and Foreign Agencies of the Government (referred to as "The Wall") as one of the reasons we failed to connect the dots. And the failure to connect the dots, helped conceal the 9/11 terror attack.

The Bush administration rolled back "The Wall". Because "The Wall" no longer existed, the co-operative information sharing between the Military Foreign Intelligence NSA type programs and Civilian Law Enforcement programs reverted to what had existed prior to the Clinton Era.

In the simplest of terms, these two types of actions (one Military and the other Civilian) are separate and receive their authority from separate sources. They have both been separately operation for many years. However, the removal of "The Wall", suddenly raises the question of the necessity for warrants. Why?

This melding of two different operations is already being carried on with the FISA and other Courts issuing Case-By-Case warrants on Constitutional Basis. For example, if an NSA type program develops information of a plan to damage US parties or Property while electronically monitoring communications between a Foreign located party and a Domestic US party, and one or more of the parties to the communications has Terrorist connections, the information concerning the Domestic US party is shared with the FBI or other Law Enforcement Agencies. Upon further investigation by the Domestic Law Enforcement Agency, revealing a criminal event, an application is made to the FISA court for a warrant. Then if the FISA Court decides a warrant is justified, the appropriate activity continues and hopefully leads to charges being brought in a Civilian Court.

It is very important to understand that NSA is an Intelligence NOT a Prosecutorial Program. It is only when Civilian Court Crimes are being pursued that a warrant may become necessary. Those who say a warrant is necessary for NSA type monitoring do not understand the difference between the functions of the branches of our government. To require a warrant for NSA type electronic surveillance programs is an infringement on the separate functions of the different branches of Government. There currently is Congressional oversight of these programs, through various Military, Finance an Intelligence Committees in both the House and Senate. This oversight is part of the spirit and the meaning of the Language of the Constitution. It follows the ideals of checks and balances of the three branches.

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