ACTION ALERT: The NSA versus the US Constitution
November 26, 2013
Michael Boldin / AmericanThinker & OffNow.org
The National Security Agency looks at literally millions of phone records. It captures millions of emails. It sifts through millions of megabytes of private data. And it does this all without following the requirements of the Fourth Amendment. It can be stopped. How that can be done in a moment, but first, a closer look at current strategies and roadblocks.
A Constitutional Strategy to Stop NSA Spying
Michael Boldin / AmericanThinker & OffNow.org
(November 21, 2013) -- The National Security Agency looks at literally millions of phone records. It captures millions of emails. It sifts through millions of megabytes of private data.
And it does this all without following the requirements of the Fourth Amendment.
It can be stopped. How that can be done in a moment, but first, a closer look at current strategies and roadblocks.
In a recent press release, one spokesperson went so far as to call criticism of the NSA a "disservice to the nation."
NSA conducts all of its activities in accordance with applicable laws, regulations, and policies -- and assertions to the contrary do a grave disservice to the nation, its allies and partners, and the men and women who make up the National Security Agency.
It shouldn't be any surprise that the NSA would claim operates legally. No agency is likely to do otherwise.
More importantly though, under the Constitution, executive agencies don't get to determine the lawfulness of their own operations.
Thomas Jefferson put it this way:
"The government created by this compact was not made the exclusive or final judge of the extent of the powers delegated to itself; since that would have made its discretion, and not the Constitution, the measure of its powers."
NOT GONNA HAPPEN
Many Americans consider the actions of the NSA to be unconstitutional, but feel helpless to stop it. Here are a few troubling facts.
1. The NSA has absolutely no intention of stopping what they're doing. None.
2. Congress is either happy about this, or too weak to do anything about it.
3. A federal court system that doesn't seem to have an issue with a "tax" on inactivity it not likely to have a problem with these actions, either.
Some members of Congress on both sides of the aisle have introduced bills in an effort to bring the NSA under control.
But with Dianne Feinstein's hand on the gavel as chair of the Senate Intelligence Committee, it's not likely that any of them will ever become law.
A hard truth: waiting for federal employees to stop the federal spy machine is a fool's game.
In The Art of War, Sun Tzu advised this strategy:
"Attack him where he is unprepared, appear where you are not expected."
The NSA is absolutely expecting opponents to "attack" their actions in the same places they always do: Congress and the courts. And they have a strong defense in place.
They've got the chair of the Senate Intelligence Committee on their side. They can point to Executive Order 12333 as another "authorization" to do the spying that they want in case the unthinkable happens and Congress repeals parts of all of the PATRIOT Act or FISA. And federal judges almost always allow for expansive federal power when "national security" is used as the justification. That's how federal "indefinite detention" powers remain law today.
In other words, no matter what is done through the conventional channels, NSA spying is going to continue.
On the other hand, taking Sun Tzu's advice can be very effective.
There is, in fact, another point Americans can target to push back against the NSA. The agency actually has an Achilles Heel.
In 2006, it was reported that the NSA had maxed out capacity of the Baltimore-area power grid.
"The NSA is already unable to install some costly and sophisticated new equipment. At minimum, the problem could produce disruptions leading to outages and power surges.
At worst, it could force a virtual shutdown of the agency."
To get around the physical limitation of the amount of power required to monitor communication around the globe, the NSA started searching for new locations with independent resources.
The NSA chose the new Utah Data Center due to the access to cheap utilities, primarily water. The water-cooled supercomputers there require 1.7 million gallons of water per day to function.
That water is being supplied by a political subdivision of the State of Utah. And they can actually turn it off.
No water = No NSA data center.
The situation is the same at many other locations around the country (there are at least 10), for example, Texas. The NSA chose the new data center in San Antonio not only for its close proximity to a new Microsoft data center, but because of the Texas power grid -- providing electricity independently from the rest of the country.
That electricity is coming from a political subdivision of the State of Texas.
They can turn it off, too.
No electricity = No NSA data center.
The strategy rests on what is known as the "anti-commandeering doctrine."
This is the principle that nothing in the Constitution requires states to help the federal government violate your rights.
In fact, Supreme Court opinion has backed this up in four significant cases going back to 1842. They are:
1842 Prigg: The Court held that states weren't required to enforce federal slavery laws.
1992 New York: The Court held that Congress couldn't require states to enact specified waste disposal regulations.
1997 Printz: The Court held that "the Federal Government may not compel the States to enact or administer a federal regulatory program."
2012 Sebelius: The Court held that states couldn't be required to expand Medicaid even under the threat of losing federal funding.
These judicial opinions are consistent with the blueprint for state-level action that James Madison gave us in Federalist #46. Among thefour steps he advised as "powerful means" to oppose federal power was a "refusal to cooperate with officers of the Union."
Denying the NSA necessary cooperation from state and local agencies is a constitutionally valid strategy.
Armed with that knowledge, there are a number of steps you should be taking in your state right now.
LEGISLATION: Get a copy of the state-level 4th Amendment Protection Act here.
Pushing back against the NSA won't be easy. But Americans cannot sit idly by and watch an agency that is supposed to defend them shred the very fabric it was woven out of.
"Instead of sitting down satisfied with the efforts we have already made, which is the wish of our enemies, the necessity of the times, more than ever, calls for our utmost circumspection, deliberation, fortitude, and perseverance."
-- Samuel Adams
Michael Boldin [send him email] is the founder of the Tenth Amendment Center. He was raised in Milwaukee, WI, and currently resides in Los Angeles, CA. Follow him on twitter @michaelboldin, on LinkedIn, and on Facebook.
Take these steps today to help stop NSA spying in your state
1. Get the model 4th Amendment Protection Act for your state (pdf) HERE.
2. Contact your STATE representative/assemblyperson AND State Senator. Strongly, but respectfully, encourage them to introduce the act for your state. A phone call is much more powerful than an email. Or do both. Contact info here.
3. Join the coalition. Are you part of a grassroots group? Encourage your group's leadership to sign on in support of the coalition here: http://offnow.org/coalition
4. Get Flyers to help spread the word!
The following is model legislation for your state to resist the unconstitutional NSA programs which violate the 4th Amendment billions of times each week.
Learn about the strategy behind this bill and its constitutional foundation, plus get action items for what you can do in your state.
AN ACT, which shall be known and may be cited as the "4th Amendment Protection Act."
THE PEOPLE OF THE STATE OF (STATE) DO ENACT AS FOLLOWS:
SECTION 1. Policy A.
It is the policy of this state to refuse material support, participation or assistance, to any federal agency which claims the power, or with any federal law, rule, regulation, or order which purports to authorize the collection of electronic data or metadata of any person(s) pursuant to any action not based on a warrant that particularly describes the person(s), place(s) and thing(s) to be searched or seized.
SECTION 2. Prohibition on State Actions
A. Notwithstanding any law, regulation, rule or order to the contrary, no agency of this state, political subdivision of this state, or employee of an agency or political subdivision acting in his or her official capacity, or corporation providing services on behalf of this state or a political subdivision of this state shall:
(1) Provide material support, participation or assistance in any form, with any federal agency which claims the power, or with any federal law, rule, regulation, order which purports to authorize, the collection of electronic data or metadata of any person(s) pursuant to any action not based on a warrant that particularly describes the person(s), place(s) and thing(s) to be searched or seized.
(2) Utilize any assets, state funds or funds allocated by the state to local entities on or after (DATE), in whole or in part, to engage in any activity that aids a federal agency, federal agent, or corporation providing services to the federal government in the collection of electronic data or metadata of any person(s) pursuant to any action not based on a warrant that particularly describes the person(s), place(s) and thing(s) to be searched or seized.
(3) Provide services, or participate or assist in any way with the providing of services to a federal agency, federal agent, or corporation providing services to the federal government