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Hornberger's Blog is a daily libertarian blog written by Jacob G. Hornberger, founder and president of FFF.
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The Pipe Dream of NSA Reformers


The pipe dream of many of those who are complaining about the NSA’s massive surveillance scheme is that the NSA can be “reined in” by some type of congressional legislation. They just don’t get it. As long as the NSA exists, it’s going to do whatever it needs to do to protect “national security,” even if that means breaking the law.

After all, protecting “national security” is paramount. It is everything. Does anyone honestly believe that the NSA is going to let the country go down if breaking the law enables the NSA to save it? Haven’t these people ever heard the old adage, “The Constitution is not a suicide pact”?

Equally important, every single NSA official knows that nothing is ever going to happen to him if he is caught breaking the law, so long as he is doing it to protect “national security.”

Consider Director of National Intelligence James Clapper. When asked under oath by Congress if the NSA was spying on Americans, he said no. In doing so, he knowingly, intentionally, and deliberately lied under oath.

His defenders say that he had no choice but to lie because telling the truth would have meant that he would have been disclosing the NSA’s super-secret surveillance scheme on the American people.

But the crime of perjury doesn’t have that written into the law as a defense. Clapper could have instead simply responded, “I’m not going to get into matters relating to what the NSA does and doesn’t do.” Instead, he chose to knowingly, intentionally, and deliberately lie under oath.

Has the Justice Department sought a grand-jury indictment against Clapper for perjury? Has Congress cited him for contempt of Congress?

No to both questions. Clapper gets a pass because he lied to protect “national security.”

If Clapper isn’t going to be prosecuted for perjury, there isn’t any reasonable possibility that any NSA official will ever be punished for breaking the law, so long as he is doing it to protect “national security.”

Consider the secret deals that the Bush administration entered into with American telecommunications companies which involved giving confidential information on customers to the government. Those deals were illegal.

Yet did anyone get prosecuted or even fired for such deals?

No, and the reason is because Congress gave everyone immunity because they broke the law in the interests of “national security.” In fact, the only telecom CEO who refused to go along with the illegal scheme, Joseph Nacchio, got criminally prosecuted, convicted, and incarcerated for supposedly violating insider trader laws.

Has anyone in the NSA been punished for conducting its super-secret surveillance scheme on the American people? Of course not, because they were doing for “national security.”

Consider the NSA’s sister national-security state agencies, the CIA and the Pentagon. Did anyone in the CIA or military get punished or even investigated for complicity in the 1973 murders of American citizens Charles Horman and Frank Teruggi. Of course not. The reason? The murders were conducted as part of a military coup in Chile intended, in part, to protect the “national security” of the United States.

Consider the CIA’s kidnapping scheme a few years ago in Italy. CIA agents broke Italian law and were criminally prosecuted and convicted by the Italian judicial system. Nonetheless, not one of the CIA agents has been returned to Italy to face justice. The reason? They were breaking the law to protect “national security” and, therefore, are considered immune from criminal liability for kidnapping.

What about the CIA agent who destroyed the infamous torture videotapes by which the CIA had been recording how it was torturing people. What happened to him? Nothing, because he did it for reasons of “national security.”

As long as the NSA exists, everyone there knows that nothing will ever happen to NSA personnel who engage in illegal surveillance, so long as they’re doing it for “national security.

As long as the NSA exists, Americans will have to assume that the NSA is going to do whatever is necessary to protect “national security.”

As long as the NSA exists, there can never be any reasonable certainty that people aren’t being improperly spied upon and monitored by the NSA.

What Americans need to ask themselves are the following critically important questions:

1. Is an NSA consistent with the principles of a free society?

2. Is an NSA consistent with the principles of a totalitarian society?

3. As long as the NSA exists, can Americans be certain that it won’t engage in improper or illegal surveillance activities?

4. Can the United States do without an NSA?

5. Why not simply abolish and dismantle the NSA?

6. Which is more important—freedom and privacy or “national security”?

7. Is it worth trading freedom and privacy for the pretense of “security”?

8. Can Americans be certain that private and confidential information acquired by the NSA won’t be used against people in nefarious ways?

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.