The Very Existence of the NSA Is Illegal

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The Washington Post reported last week that the National Security Agency soon would begin providing local law enforcement with data on American citizens intercepted without probable cause and without a warrant. This data has nothing whatsoever to do with terrorism. It apparently will be used mostly in drug cases, although it could conceivably be used against any American for any reason.

Most Americans shrugged their shoulders when the news became public. But the Massachusetts ACLU published a blog post that tried to explain why this is so important and so dangerous to our civil liberties.

The ACLU said:

"Domestic law enforcement officials now have access to huge troves of American communications, obtained without warrants, that they can use to put people in cages. FBI agents don't need to have any 'national security' reason to plug your name, email address, phone number, or other 'selector' into the NSA's gargantuan data trove. They can simply poke around in your private information in the course of totally routine investigations. And if they find something that suggests, say, involvement in illegal drug activity, they can send that information to local or state police. That means information the NSA collects for purposes of so-called 'national security' will be used by police to lock up ordinary Americans for routine crimes. And we don't have to guess who's going to suffer this unconstitutional indignity the most brutally. It'll be Black, Brown, poor, immigrant, Muslim, and dissident Americans: the same people who are always targeted by law enforcement for extra 'special' attention."

Until recently, according to the New York Times, NSA analysts "filtered" the information before providing it to other governmental entities. The NSA would mask the names and any irrelevant information about innocent Americans before passing the information to the CIA, the FBI, or the Department of Homeland Security. Those protections no longer exist.

What kind of information are we talking about here? You name it. The NSA can give it to the FBI, the local cops, or whomever else they want. Have you called an abortion provider? A psychiatrist? Do you have a secret boyfriend or girlfriend? Have you texted your weed connection? Nothing will be secret. And remember, nobody has a warrant for anything.

Civil libertarians around the country will argue fervently that this is illegal and unconstitutional. It is, of course. But I would go further. I would argue that the very existence of the NSA is illegal.

NSA is not like the CIA or the National Security Council, which were created by the National Security Act of 1947. The NSA was created in 1952 by presidential executive order. That sounds fine. But only Congress can create a federal agency. President Truman did it unilaterally at the time and nobody in Congress complained.

Truman made the new National Security Agency subordinate to the Secretary of Defense. It's a military organization. All NSA leaders, since the organization's creation, have been generals or admirals. It has never had civilian leadership.

The problem with that is there is a federal law that prohibits the military from having any role in domestic policy. It's called the Posse Comitatus Act. Passed and signed into law in 1878, the Act states: "From and after the passage of this act it shall not be lawful to employ any part of the Army of the United States as a posse comitatus, or otherwise, for the purpose of executing the laws, except in such cases and under such circumstances as such employment of said force may be expressly authorized by the Constitution or by act of Congress."

That means that Congress can authorize the army to, say, assist local governments during a natural disaster. But it forbids exactly what the Obama administration is now mandating the NSA to do -- provide information to federal and local law enforcement organizations on American citizens. It's just simply illegal. It's the use of the military in law enforcement. It's an act of war against the American people.

One of three things must happen. Either our elected representatives in Congress must vote to allow the NSA to share with law enforcement information collected on Americans without a warrant, after open, public hearings; or the courts must take up the matter and make a decision based on the Constitution; or the NSA must cease to exist. I would vote for the last.

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