Hornberger's Blog

Hornberger's Blog is a daily libertarian blog written by Jacob G. Hornberger, founder and president of FFF.
Here's the RSS feed or subscribe to our FFF Email Update to receive Hornberger’s Blog daily.

What Good Would it Do to Reform the NSA?


I don’t know who Eric Weiss is. All I know about him is that he recently wrote a letter to the New York Times about the NSA surveillance scandal. But I do know that when it comes to the controversy surrounding the NSA, Weiss is one of the few people who really get it.

Weiss makes two important points about the NSA. His first point is this:

The notion that the National Security Agency’s surveillance activities can or will be curbed is wishful thinking. The idea that transparency can be imposed on its operations is delusional. This is a rogue agency that does what it does because it can (technologically, not legally).

Let’s suppose that the administration decides that it wants to curb the telephone metadata sweeps. How does it do this? Cut funding? How would it know that the operations are not being paid for surreptitiously from other programs, given that this is an agency that fosters a culture of secrecy regarding even its most mundane activities?

Keep in mind that the mission of the NSA is to protect “national security.” That is the reason for its existence. Protecting “national security” is paramount. It is everything.

Thus, the NSA is going to do whatever is necessary to protect “national security,” even if that means breaking the law. After all, as defenders of the national-security state often remind us in justifying the commission of illegal acts, the Constitution is not a suicide pact. What they mean by that is that if breaking the law is the only way to save the nation, then that’s what needs to be done.

Recall those illegal deals that the NSA entered into with American telecoms. Everybody knew that the parties were breaking the law. It didn’t matter because “national security” was at stake. Everyone ended up getting immunity from criminal prosecution and civil liability. They were considered “patriots,” not criminals.

Let’s assume that a stringent set of reforms is imposed on the NSA and that the NSA ends up violating them in order to protect “national security.” For one thing, no one is likely to find out about it. Consider how many years the NSA conducted its massive secret surveillance schemes on the American people. If it hadn’t been for Edward Snowden, we still wouldn’t know about such schemes.

And even if people do find out about the law-breaking, what difference will it make? Everyone, including every NSA employee, knows that no one is going to go to jail over the matter. They’re not going to get fined. They’re not going to get fired. They’re not even going to get reprimanded. They’ll be considered “patriots” who were just doing their job, protecting “national security.”

There is a second important point that Weiss didn’t make in his letter to the editor. When NSA officials are asked about any illegal surveillance schemes, they’ll lie about it, in order to protect “national security.” They’ll even commit perjury before Congress rather than disclose what they’re doing.

We have learned that from Director of National Intelligence James R. Clapper. When asked whether the NSA gathered data on millions of Americans, Clapper said, “No, sir. Not wittingly.” Clapper lied. And when he lied, he was testifying under oath at a congressional hearing.

Why did Clapper apparently commit perjury? To protect the secrets! Don’t forget, in his mind “national security” was at stake. That’s what matters above all. So if it’s a choice between perjury and maintaining the secrets, NSA officials are always going to choose the latter, especially since they know that they’re not going to get prosecuted for perjury. After all, at the risk of belaboring the obvious, if they’re not going to go after Clapper for perjury, they’re not going to go after any NSA employee for perjury.

Thus, while most everyone is scrambling to come up with some plan that reforms the NSA, they’re all avoiding the real issue: As long as the NSA remains in existence, it’s going to do whatever it wants to protect “national security.”

That means that there is one — and only one—way that the American people can ever be assured that there are no secret surveillance schemes being employed against them. That solution is to abolish and dismantle the NSA, not reform it.

But considering the real reason the NSA collects information on people, in his second important point Weiss astutely addresses why the members of Congress are unlikely to dismantle the NSA:

Disband the N.S.A.? Not likely. It has no doubt identified enough skeletons in the right closets (just as J. Edgar Hoover of the F.B.I. did) to shield itself from any political assault. This genie is out of the bottle for keeps.


This post was written by:

Jacob G. Hornberger is founder and president of The Future of Freedom Foundation. He was born and raised in Laredo, Texas, and received his B.A. in economics from Virginia Military Institute and his law degree from the University of Texas. He was a trial attorney for twelve years in Texas. He also was an adjunct professor at the University of Dallas, where he taught law and economics. In 1987, Mr. Hornberger left the practice of law to become director of programs at the Foundation for Economic Education. He has advanced freedom and free markets on talk-radio stations all across the country as well as on Fox News’ Neil Cavuto and Greta van Susteren shows and he appeared as a regular commentator on Judge Andrew Napolitano’s show Freedom Watch. View these interviews at LewRockwell.com and from Full Context. Send him email.