There are lots of articles, blogs and news posts on the internet regarding the NSA and how they are violating your civil rights or human rights; how they are establishing a police state or surveillance state; and how they are doing all kinds of things that are illegal but nobody really knows why they are illegal or if they should be concerned.
These articles don’t necessarily outline how they are doing everything, mostly they try to brush things off as law enforcement work and people nod their heads and give in to the the thought of the NSA being part of the civilian police force. People understand that the police won’t disclose their investigation techniques unless they are challenged by a defense attorney in a criminal trial since in the United States, all people are innocent until proven guilty. The police also need to establish probable cause for an investigation when a specific crime has been committed. With these thoughts in mind, most people are comfortable in the thought of the NSA not disclosing the technical details about how they conduct surveillance or even why they conduct surveillance and nod along to the idea of NSA surveillance being part of some security processes for the safety of US Citizens. However, this is leading the conversation away from the actual issues.
The NSA is part of the United States Armed Forces
Every US Federal Agency and the United States Armed Forces are authorized under the United States Code. The United States Code gives them their legitimacy and authorizes them to conduct certain actions or activities as specified in the US Code. The US Federal Government is very cautious about calling members of the US Armed Forces, federal employees. This is because the designation risks classifying every member of the US Federal Government as a member of the US Armed Forces and would place every member of the US Federal Government under societal rules and regulations for the armed forces of a sovereign state.
The US Government doesn’t want this designation because every employee of every federal agency would be a valid military target by the armed forces of a foreign adversary. Most federal employees are not armed nor do they have military combat training; they work for the USDA, FDA, NIH, CDC, EPA, DOE, DOI, NPS, BEA, BOEA and US Census to name a few. The full list can be found on usa.gov/federal-agencies.
The list currently contains the US Armed Forces mixed in with the Federal Government but policies have been set in place to not call members of the US Armed Forces a federal employee and the website started out as a directory of every government agency that receives funding from the US Treasury.
An effort is in place to possibly have a separate directory for federal agencies and departments of the US Armed Forces. Possibly usa.mil, It’s a work in progress and taking longer than expected due to “security clearances” (on public information) and the STEM professionals shortage in the USA.
The Codified Laws
There are two sections of the US Code that define the US Armed Forces,
I’m using Justia for the US Code because it is easier to navigate and read than the US Code hosted on the House of Representatives website or the US Code hosted by the Government Publishing Office (click orange ‘search’ or ‘browse’ buttons) but they are the same and you can always compare at the official government sites.
Under US Code Title 50 you will find Chapter 47 that defines the National Security Agency and outlines the activities it is authorized to conduct during the course of war and national defense.
Within Chapter 47 of Title 50, subsection 3605 there is a reference to reporting requirements defined in Title 10 which further categorizes the National Security Agency as a member of the US Armed Forces.
The reference to Title 10 that categorizes the National Security Agency as a member of the United States Armed Forces through it’s reporting requirements is unnecessary because NSA is authorized under a section of the US Code that is for War and National Defense.
Since the USA is a developed nation and more specifically a permanent member of the UN Security Council, it goes without saying that the USA should understand that only the armed forces of a nation can conduct War and National Defense since this is the set protocol under international agreements, covenants, treaties and conventions. In the United States, war must further be authorized by Congress per the US Constitution.
Clarification on the 2nd Amendment
The USA allows US Citizens to bear arms and form militias under the 2nd amendment of the US Constitution which was enacted and ratified in 1791, prior to both the formation of the UN and the US adoption of the Geneva Conventions in 1945 and 1955 respectively. This constitutional right was for civilian defenses and compliant with customary laws dating to at least 202 A.D.
In the context of the time period when the 2nd amendment was enacted and ratified in the USA, formations of militia’s were generally thought to be a defense against corrupt members of the US Government [definition 1.1 of Oxford] in compliance with paragraph 2 of the US Declaration of Independence. The second definition of a militia during that time period would be as a supplemental force to the US Armed Forces during an invasion [definition 1 of Oxford]. This second definition would most definitely fall under Civil Defense of the Geneva Conventions (section 2540 of linked document) in modern times. However, the Pentagon would refuse to send a militia into a conflict on foreign soil but would likely take command or issue orders to militias during an invasion on US Soil if it were legally possible and the militias voluntarily agreed to cooperate with the Pentagon. This can be discussed with and clarified by the Citizens of the USA as things progress.
For practical purposes, in 2019 and dating back to the mid 1990s a militia in the United States would most likely resemble the one described in Article 64 of Part IV of Additional Protocol I of the Geneva Conventions where the involved party is the US Armed Forces and the neutral party would be US Civilians. The militias would be used in defense of civilian infrastructure, homes and businesses and in defense of large properties by property owners and their extended families and friends who would be members of militias.
In the USA the right to bear arms outside of membership in a militia is seen as a customary law. The use of a firearm is seen as an appropriate instrument for self defense, for the purpose of hunting and for the purpose of other sporting activities such as target practice in this context.
It is known based on examination of historical documents from the 1750s to 1820s that the second comma in Amendment II (2nd amendment) of the US Constitution should be a semi-colon or the word ‘and’. This has been a customary interpretation of the right to bear arms in the USA since the 1970s and is supported by writing samples from the time period when the amendment was ratified in 1791.
The 2nd Amendment (Amendment II of the US Constitution) is a constitutional right and gives civilians who are US Citizens the right to own a firearm for the purpose of self defense. This right is promoted by civilian law enforcement to business persons and large property owners who are at higher risk for robbery, extortion, home invasion and violent property theft crimes as they will not always be able to respond in a timely manner and it is possible that the business person or property owner may not be able to call for help or yell out to bystanders in all situations.
For context, Mexico is a developed nations that allows Mexican Citizens to keep and carry guns through Article 10 of the 1917 Mexican Constitution which states [translated] “the inhabitants of the United Mexican States have the liberty to posses arms of any caliber for security and legitimate defense with the exception of those specifically prohibited by law and used by the [Mexican] Army, Armada or National Guard but the arms shall not be transported through the population without abiding by police regulations [for transporting arms]”.
For additional context, Japan is a country that does not give Japanese Citizens a constitutional right to carry arms. It restricts guns, imitation guns, gun parts and swords and has done so since 1629. However guns can be obtained through a permit and this is outlined in Japanese Law Number 6 of 1958 titled Law Controlling Possession of Firearms and Swords. It allows guns to be used with permit for hunting, industrial purposes (including animal butchery), research and international or athletic competitions. It also allows the possession of swords with permit for ceremonial purposes and both swords and guns can be used with permit for display in an exhibition, display in a museum and theatrical performances. The United States Library of Congress has a collection of gun rights for several popular countries. The possession of firearms or any type of arms by civilians is not unprecedented and it has both historical and modern legislative support.
In the United States, these arms can be used on law enforcement making unlawful arrests or engaged in property crimes against the arms owner. They can not be used to walk into a police station and commit violence against law enforcement. In the former case, there would be a civilian court trial to exonerate the arms owner if they acted lawfully and in self defense.
Department of Defense Organizational Chart
For the purpose of international order in accordance with Article 28 of the UN Declaration of Human Rights and in regards to the requested clarification on Title 50. After extensive review, Title 50 specifically applies to the US Armed Forces. National Defense in that context would apply to the US Armed Forces in defense of the United States and its territories by invading armed forces of another nation. This would mean the invading armed forces would be the military objective and the defensive action would be eliminating those military objectives.
Title 50 would not apply to militias unless they were used as a supplemental force where the US Armed Forces controlled and directed their movement and equipment as described in section 2504 of the Geneva Conventions. In the United States, militias often operate independently of the US Armed Forces to defend local large property owners and the US Armed Forces have the US National Guard as a supplementary force. Scenarios for use of militias by the US Armed Forces is described under Clarification on the 2nd Amendment.
The following organizational chart from the Department of Defense’s Secretary of Defense outlines intelligence agencies that are part of the United States Armed Forces.
They include Defense Advanced Research Project Agency (DARPA), Defense Business Transformation Agency (DBTA), Defense Commissary Agency (DCA), Defense Contract Audit Agency (DCAA), Defense Contract Management Agency (DCMA), Defense Finance and Accounting Agency (DFAA), Defense Information Systems Agency (DISA), Defense Intelligence Agency (DIA), Defense Legal Services Agency (DLSA), Defense Logistics Agency (DLA), Defense Security Cooperation Agency (DSCA), Defense Security Service (DSS), Defense Threat Reduction Agency (DTRA), Missile Defense Agency (MDA), National Geospatial Intelligence Agency (NGIA), National Security Agency (NSA) / Central Security Service (CSS), Pentagon Force Protection Agency (PFPA).
Based on established protocols and conventions of war, these would be valid military objectives for an adversarial foreign nation’s armed forces. In the case of an invasion on US soil it is the understanding of the population that the police and federal agencies would generally fall under the definition of civilians.
The above agencies are classified as defense agencies within the Department of Defense and are intelligence agencies within the context of the United States Armed Forces. They are not intelligence agencies within the context of the day to day lives of United States Civilians nor are they Civilian Law Enforcement Agencies of the United States like the FBI, Homeland Security or U.S. Marshalls which deal with Federal Law Enforcement.
Missing from the list is the CIA who is also part of the United States Armed Forces since they are defined and authorized in Chapter 46 of Title 50 – War and National Defense. It is also important to note the agencies under DoD Field Activities such as American Forces Information Service and Defense Technical Information Center because like DISA, they conduct a lot of the same services for the US Armed Forces that the NSA conducts and none of them have violated the civil or human rights of United States Citizens.
The NSA has no Authority over Civilian Matters
Currently in the US, these customary laws are developing into the separation of civilian and armed forces and that is the understanding inside the borders of United States among it’s citizens. The separation of civilians from armed forces are a reason members of the US Armed Forces have a contractual term during which time they are governed by the Uniform Code of Military Justice and not considered civilians. This means they can not be prosecuted for the crimes listed in Title 18 of the US Code but the Uniform Code of Military Justice provides punishment for these crimes. The punishment is often more severe than civilian penalties for the same crime and it can include a lifetime prison term or capital punishment both of which would be administered by the military courts.
The President of the United States sets the maximum limits for a court marshall under the Uniform Code of Military Justice (UCMJ) as of 2013. However, this was in the process of being transferred to the Pentagon or Secretary of Defense since their careers can often be from 20 to 40 years or more whereas the President of the United States can only serve a maximum term of 8 years.
The reason for the transfer of authority is so that President’s are not able to able to fluctuate the sentences of US Armed Forces personnel prosecuted under UCMJ and to ensure penalties are more severe than a corresponding civilian crime from presidency to presidency.
US customary law on separation of civilians and armed forces personnel seeks to keep armed forces out of civilian quarters while on active duty or while enlisted on a military contract. These customary laws are the reason members of the US Armed Forces must go through a TAP program at the end of their service to reintegrate with civilians.
As a member of the United States Armed Forces, NSA is governed internationally by the Geneva Conventions and International Humanitarian Law (IHL). The IHL is considered customary law which is also called common law.
Customary laws are where human rights and civil rights come from and compliance with these laws are imperative to the development of society and the human species.
These customary laws are documented, enacted and ratified by Governments in the form of constitutions and bill of rights every several hundred years to update the language so it is understandable to the population based on their current dialects.
Geneva Conventions were first drafted in 1949 and they are the most recent convention regarding warfare. Geneva Conventions governs appropriate conduct for members of armed forces internationally and this code of conduct applies to the NSA.
The Geneva Conventions are currently hosted on the website of the International Red Cross in a web portal format for public review and general access. There are also efforts being made to distribute the copies of the Geneva Conventions on the websites of other world bodies in the same way the US Code is hosted on multiple government, legal and educational websites. For now, they are hosted at Red Cross and in PDF format at the UN main website.
This protocol defines civilians and lists proper treatment of civilians by armed forces. The requirements for proper treatment of civilians by the armed forces would extend to define the proper code of conduct for members of the NSA. The section specific to civilians are Articles 48 through 79 of this additional protocol. Part I of this protocol also includes 4 articles related to civilians since it is the section on general provisions, they are Article 13, Article 14, Article 15 and Article 17. Use your browser to search for “civilian” and “civil defence” and “highlight all” to make it easier to find everything.
Under Part IV some items for the NSA to consider are as follows:
- Article 50 – Definitions of Civilians and Civilian Population
- Article 51 – Protection of the Civilian Population
- Article 52 – General Protection of Civilian Objects
- Section 2 of Article 52 mandates that attacks will be limited to military objectives meaning other armed forces.
- Article 53 – Protection of Cultural Objects and Places of Worship
- Article 54 – Protection of Works and Installations Containing Dangerous Forces
- Article 59 – Non Defended Localities
- Article 63 – Civil Defense in Occupied Territories
- Article 65 – Cessation of Protection
- Article 67 – Members of the Armed Forces and Military Units Assigned to Civil Defence Organizations
- Article 79 – Measures of Protection for Journalists
Regarding Article 67 of Part IV of Additional Protocol I of the Geneva Conventions, the United States Veterans Affairs Office has a TAP program that members of the US Armed Forces, including NSA should be aware of. This assignment to civil defence organizations is unlikely to occur in the USA as US based militias are unlikely to “transfer” an NSA member to a militia post.
The NSA may be assigned to a deployed National Guard Unit however, deployed National Guard Units are under the Command of the US Army. With civilian intelligence agencies, members of the US Armed Forces must complete their contract and apply through the normal application process for a specific role so there is no assignment possible.
In addition to the above listed conventions Rule 1 of the IHL is titled the Principle of Distinction between Civilians and Combatants which compliments Article 52 section 2 from part IV of Additional Protocol I of the Geneva Conventions. The NSA must be respectful of these distinctions.
The Civilian Intelligence Community
Because of the distinction between combatants and civilians; it is important to define the difference between civilian intelligence agencies which are tasked with solving property crimes, preventing unlawful conduct, and preventing fraud or waste of civilian government budgets; and armed forces intelligence agencies which are tasked with gathering intelligence for the sole purpose of achieving a military objective. In regards to an armed forces intelligence agency, they must gather the intelligence in military uniform or they can be charged with espionage which is an executable offense and has been known to be an executable offense in the USA since the late 1800s.
Members of the US Armed Forces Intelligence Community must remain separate from the US Civilians Intelligence Communities in order to remain compliant with international rules, treaties and conventions; respect the civil and human rights of US Citizens; and to honor the US Constitution and recently developed customary law within the USA on the separation of civilians and armed forces.
Members of the US Civilian Intelligence Community include the FBI, Homeland Security, US Marshalls, DEA, IRS, NOAA, USGS, US Forest Service, NOAA, EPA, CDC, NIH, CBO, US DOT, DOE, DOI. Ideally they should not have performed any services for the US Armed Forces and should have received any firearms or wilderness survival training through a community law enforcement or federal training academy if they are allowed to be armed during the course of their employment.
Why the NSA gets it Wrong
There are various repealed sections of the US Code that have led the NSA to believe that they have authority over civilian matters, which they do not. The US Armed Forces should be submitting tips to US Civilian Intelligence Agencies regarding any crimes that are being or will be committed on US Domestic soil and allow the Civilian Intelligence Agencies to solve the crimes and apprehend the criminal for prosecution through the US Courts. They can do this via tip forms hosted on every Civilian Federal Agencies website including the FBI which has links to other tip forms on the footer of their tip page.
The heading on Title 50 is War and National Defense and Chapter 23 has a heading of Internal Security, subchapter I has a heading of Control of Subversive Activities. If you were reading only the headings, you would infer that controlling subversive activities as part of internal security is authorized under war and national defense. However, you would be wrong in thinking this because of Geneva Conventions and the IHL which govern all armed forces from every developed nation in all parts of the world. Appropriately, with the exception of the following subsections of Title 50, the entirety of Chapter 23 Subchapter I has been repealed.
Section 783 describes punishment of up to 10 years in military prison, a fine of $10,000 USD and forfeiture of any property obtained as proceeds for exchange of classified information between US Armed Forces and a foreign agent. The penalties apply to both US Armed forces and foreign agents engaged in conflict. This does not apply to civilians, for example a US Civilian doing business in Iraq or Afghanistan legally and in compliance with the import/export regulations set by the Department of Commerce would not face these penalties.
Section 796 outlines that this subsection does not nullify any other sections of law which would include the Geneva Conventions and IHL in addition to the UCMJ.
Section 797 states that violation of a security regulation or order would be prosecuted under Title 18. However, this is incorrect as it should be prosecuted by military courts under the Uniform Code of Military Justice which is documented in Title 10 Chapter 47 military prisons are defined in Title 10 Chapter 48 of the US Code and should be kept separate from civilian jails and prisons especially since it is required that military prisons have an officer in command at each facility and most civilians would not understand commands or appropriate code of conduct in a military jail. Civilians should not be forced to work out or join “prison gangs” as part of their sentence for violating civilian legislation so it is important to keep these two prisons separate.
Despite the error in subsection 797, it is clear and evident that internal security including control of subversive activities are not the responsibility of the US Armed Forces which include the NSA.
Perceived Subversive Actions Deemed Threats to the Armed Forces
Below are a few brief examples on why most of Title 50 Chapter 23 was repealed.
In the United States the 2nd amendment allows US Citizens to bear arms. While the US military may consider this a threat to their military bases, it is a citizen right and obtaining firearms, crossbows, swords, knives, slingshots or other types of arms. This constitutionally protected activity can not be classified as a subversive action as it violates both the 2nd amendment of the US Constitution and the Geneva Conventions regarding Civil Defense Units. In these cases, Civilian Intelligence Agencies should deal with the alleged problem and military bases should be moved away from civilian populations if the base commander feels threatened.
Another example would be drug trafficking which should be deferred to Civilian Law Enforcement Agencies like the DEA for arrest and apprehension. In the case of a military objective like targeting the weapons cache of El Chapo who is accused of committing chemical warfare on the US population, the US Armed Forces, which include the NSA need to define a specific area to be targeted, for example they have satellite footage of his motorcade entering South Central Los Angeles where the satellite feed became jammed and stopped transmitting. In this case, Civilian Intelligence Agencies might authorize the military to conduct signals intelligence in that area only for a specific amount of time and give weekly reports on any new information found as to the whereabouts of El Chapo. If they can not locate the weapons cache within the specified time period, the US Armed Forces must declare their objective a failure and move the armed forces away from the civilian area. Civilian Intelligence Agencies may also opt to locate the weapons cache or narrow down a location where it may be located by using civilian law enforcement techniques before authorizing signals intelligence by members of the US Armed Forces to a more specific area. The NSA or any armed forces can not just sit around twiddling their thumbs and listening to random civilian conversations hoping they will mention the location of a military objective.
NSA’s Technology Role within the US Armed Forces
As a member of the US Armed Forces, the NSA should be focused solely on threats to military objectives within the USA that a member of a foreign adversarial armed force might be interested in such as the data centers at the Pentagon, NSA, CIA or DISA. The Secretary of Defense is authorized to allow each agency that is part of the US Armed Forces to manage its own data centers and can even allow other armed forces Agencies, Departments or Units under his or her command to audit NSA data centers, for example peace keepers from NATO or the UN Security Council.
The NSA should be solely focused on defending military objectives and discovering and targeting the digital military objectives of adversarial armed forces. There are 17 total Defense Agencies under the command of the Secretary of Defense and NSA should understand and be mature about the fact that some objectives will be assigned to other defense agencies and possibly directly to one of the departments under the command of the Secretary of Defense.
The NSA and all cyber agencies or departments that are part of the US Armed Forces must remain compliant with the Geneva Conventions, IHL and US customary law on separation of civilians and armed forces in its cyber operations. They can not target civilian businesses, banks, schools, law enforcement or civilian intelligence agencies.
The Pentagon has made the latest version of the Department of Defense War Manual available for the public to review. It is covers the Geneva Conventions and IHL in the Pentagon’s own language. The NSA is expected to abide by the Department of Defense War Manual in all it’s cyber operations.
Tips for members of the US Armed Forces violating the Department of Defense War Manual can be submitted on the following web pages. The software is developed and hosted by Anderson Software, LLC which is a company out of Harper, TX.
You can also report your tips to the DoD Hotline through their tip form.
The DoD Hotline is run by the DoD office of the Inspector General and their direct phone number is 703-604-8799.