Monday, May 15, 2006

NSA is operating outside its charter

You may have heard the term, No Such Agency? Well, that would be the bad boys of recent headline fame, also known as the Agency That Cannot Be Named. It was originally a project so secret that most members of Congress had never even heard of it, yet today you can Google lines of code from one of their old, out-of-control projects.

Back in the day, while I was still in basic training at San Diego, I took the Foreign Language Aptitude Test (FLAT) and apparently scored well, because the minute they had finished grading the test, the proctor told me to report to Room XYZ (follow the yellow line painted on the floor), and with an "Aye, aye, sir," off I went.

Imagine my surprise when I ended up reporting to a man smoking a pipe in a walnut-panelled room (and wearing a tweed jacket and sporting a bow tie) with a huge plaque hanging on the wall over his head that read: National Security Agency.

I declined the job, as I knew that the Israelis had blown our spy ship, the USS Liberty, out of the water during the Sinai war in 1967. The Liberty was, of course, a US Navy SIGINT ship, chock-full of NSA-trained "communications" personnel. While I had volunteered to defend America, I wanted no part of being a potential victim of one of our "allies." I turned down the job with the NSA, whatever it was.

But my interest was piqued, and I have followed the career of the NSA with mild curiosity ever since. So it comes as no surprise to learn that the NSA no longer operates within its charter, which derives from Truman's National Security Act of 1947, tasking the agency with the gathering of the electronic communications of foreign governments. Further, the NSA (and the President) have broken the law by acting in a manner not consistent with the original charter of the NSA.

1.b.(b.) The COMINT mission of the National Security Agency (NSA) shall be to provide an effective, unified organization and control of the communications intelligence activities of the United States conducted against foreign governments, to provide for integrated operational policies and procedures pertaining thereto. As used in this directive, the terms "communications intelligence" or "COMINT" shall be construed to mean all procedures and methods used in the interception of comunications other than foreign press and propaganda broadcasts and the obtaining of information from such communications by other than intended recipients, but shall exclude censorship and the production and dissemination of finished intelligence.

Not domestic communications. Foreign. Governments.

Put away your legal arguments, your practical arguments, your expediency arguments, and your "9/11 changed everything" arguments. The agency is presently operating (you legal eagles will recognize and understand the implications of the following phrase) ultra vires.

Translated from the legal French: "Outside of their charter."

Ultra vires is a well-established rule of business and municipal law. Plainly speaking, it means that the owners (stockholders) of a company can sue the executives of a company or corporation when the company is no longer doing the business it was chartered to do.

For example, McDonald's is chartered to sell hamburgers. If they start selling guns and ammo, say, the stockholders can sue the company (CEO, board of directors, whatever), for doing business outside their mandate.

This is the legal situation that NSA is presently in. They are chartered to intercept the communications of foreign governments only.

By engaging in domestic intelligence they have exceeded their charter, thus they are engaging in unchartered activity, and the officals in charge, including the President, can and should be sued, fined, and publiclly pilloried, by the stockholders of that enterprise, namely, the US taxpayer.

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