Cry me a river. The widespread adoption of encryption wouldn't have been such a pressing issue if spy agencies like the NSA hadn't been abusing their powers by conducting mass surveillance on law abiding citizens.
You do realize that all government agencies, especially those under the DoD, serve at the pleasure of the POTUS, right? Obama has had close to two full terms to tell NSA what he wants done and how he wants it done. He could shut the whole joint down tomorrow. He has not. He is very aware of exactly how NSA operates, and he has not changed a damn thing.
Blame NSA, or whoever, all you want. They serve at the pleasure of their customer.
> You do realize that all government agencies, especially those under the DoD, serve at the pleasure of the POTUS, right?
This is false. Government agencies largely are creations of statute law, and their existence is governed by Congress. The heads of agencies (and top-ranking subordinate officers to a certain level) often serve at the pleasure of the President, but the agencies themselves do not exist at his pleasure.
In most cases where the agencies that are not created by statute are subordinate to those that are, those subordinate agencies still do not exist at the discretion of the President, they exist under the statutory authority of some officer of the statutorily-created agency to which they report. (That officer may serve at the pleasure of the President, so the President could fire them for not acting as he wishes with respect to the subordinate agency, but the agency itself does not exist at the discretion of the President.)
There are exceptions -- subordinate organizations not created by statute within the Executive Office of the President, for instance -- but generally federal government agencies do not exist at the discretion of the President.
Heck, even doing this through a back-door approach by refusing to spend Congressionally-appropriated funds in order to kill a program has been ruled unconstitutional; Train v. City of New York, 420 U.S. 35 (1975).
"Independent agencies of the United States federal government are those agencies that exist outside of the federal executive departments (those headed by a Cabinet secretary). More specifically, the term may be used to describe agencies that, while constitutionally part of the executive branch, are independent of presidential control, usually because the president's power to dismiss the agency head or a member is limited."
The NSA isn't an independent agency, it's a part of the US military chain of command under the Department of Defense and hence is under the direct control of the Command in Chief.
The head of the NSA is always an active enlisted officer who is part of the of the joint chiefs (Admiral/General ;)) and is also the commander of the US Armed Forces Joint Cyber Command (USCYBERCOM).
https://en.wikipedia.org/wiki/National_Security_Agency
> The NSA isn't an independent agency, it's a part of the US military chain of command under the Department of Defense and hence is under the direct control of the Command in Chief.
The NSA's existence, as well as some particular details of officers that it must have, etc., are mandated by Congress in statute; see the National Security Agency Act of 1959 (and subsequent amendments thereto.) That it is within the military chain of command doesn't change this; Congress's power to do direct the structure of the military is an enumerated power in Article, Section 8. The designation of the President as Commander-in-Chief does not make the President unreviewed dictator of the military, it simply restricts Congress power over military organization such that the Congress cannot place authority to command the military within the regulations adopted by Congress in some other person than the President.
Congress's power to direct the existence, function, organization, and funding of agencies -- and the President's lack of Constitutional power to disregard Congress's directions on those matters and disband statutorily-mandated programs and agencies -- is not, contrary to your description, restricted to independent agencies. It absolutely does extend to federal executive departments, including the Department of Defense.
> The head of the NSA is always an active enlisted officer who is part of the of the joint chiefs
No:
(1) The Director of the NSA is always an active commissioned officer (and a four-star flag officer during the tenure in the position.) Commissioned officers are not enlisted personnel.
(2) The Director of the NSA is not a member of the Joint Chiefs -- the Joint Chiefs of Staff include the Chairman and Vice Chairman of the Joint Chiefs, and the Chiefs of Staff of each service (Chief of Staff of the Army, Chief of Staff of the Air Force, Chief of Naval Operations, Commandant of the Marine Corps, and the Chief of the National Guard Bureau.) The Director of the NSA is Chief of the Cyber Security Service, but not every position with the word "Chief" in it in the military is a member of the Joint Chiefs of Staff.
> The NSA isn't an independent agency, it's a part of the US military chain of command under the Department of Defense and hence is under the direct control of the Command in Chief.
The NSA's existence, as well as some particular details of officers that it must have and its functions and duties, are mandated by Congress in Statute; see the National Security Agency Act of 1959 (and subsequent amendments thereto.) That it is within the military chain of command doesn't change this; Congress's power to do direct the structure of the military is an enumerated power in Article, Section 8. The designation of the President as Commander-in-Chief does not make the President unreviewed dictator of the military, it simply restricts Congress power over military organization such that the Congress cannot place authority to command the military within the regulations adopted by Congress in some other person than the President.
Congress's power to direct the existence, function, organization, and funding of agencies -- and the President's lack of Constitutional power to disregard Congress's directions on those matters and disband statutorily-mandated programs and agencies -- is not, contrary to your description, restricted to independent agencies. It absolutely does extend to federal executive departments, including the Department of Defense.
"The Act does not describe the functions of the National Security Agency (NSA), but deals with "housekeeping" matters such as pay and allowances, training, property acquisition, and leasing, It exempted NSA from the requirement to provide detailed information regarding organizational and functional matters to the Civil Service Commission (the predecessor of the Office of Personnel Management)."
The NSA is the only Agency that it's mission is dictated by the Executive Branch.
I didn't think this comment would blow up so much. Thank you for clarifying my point. I should have cited sources, but NSA specifically literally directly serves the POTUS. He can _literally_ shut it down tomorrow, among other things.
There is no such thing as an "enlisted officer" in the uniformed services of the United States. There are Non-Commissioned Officers, but they're not actually officers and they're never in command of anything larger than a patrol boat or a tank.
"The agency was formally established by Truman in a memorandum of October 24, 1952, that revised National Security Council Intelligence Directive (NSCID) 9.[28] Since President Truman's memo was a classified document,[28] the existence of the NSA was not known to the public at that time."
I believe that you are correct that the NSA was originally an agency created by unilateral Presidential action that could have been disbanded by discretionary Presidential action, however, AFAICT, it has been a regular statutory agency since the adoption of the National Security Agency Act of 1959. [0]
Why do you people keep repeating these blatant lies? The POTUS does not have direct power to do these kinds of things. It's the whole lot of politicians that are ignorant and corrupt.
When Bush was in charge, everyone was quick to blame him. But now that Obama is in charge, suddenly it is "president has never been the one pulling strings .. why is everyone blaming him?"
When Bush was in charge, Republicans apologized for him and Democrats blamed him personally for destroying the country.
While Obama is in charge, Democrats apologize for him and Republicans blame him personally for destroying the country.
The truth is, the president is never the one pulling the strings (at least not all of them), but both sides insist it's the case when it's to their advantage to attack strawman positions of the incumbent party.
I dunno, the whole concept of a "commander-in-chief" -- Chief Executive of a country, "The Buck Stops Here" -- is an odd dynamic. While we have the 3 branches of government, one of them is physically and institutionally commandeered by one human being, subject to the limitations and weaknesses shared by the 300 million human beings he oversees.
The checks and balances system is nice, preventing a situation in which a depressed or cranky president launches a war "just because"...But there are a lot of other less direct ways that his personal state of being could drastically affect the entire country. What if the senator who is a leading advocate for surveillance reform personally insulted the president's family? Sure, the senator's a jerk, and the president would never admit to basing his decision to ignore the senator on such a personal slight. But if such personal hostility resulted in the president putting the senator much lower on his priority list...such that he never gets around to giving the issue the proper amount of attention...The impact on the country is virtually the same as if the president's reaction had been, "Fk that d-bag and everything he stands for"
This is just a long way of saying, yeah, kind of crazy how so much of what affects us as a society is in the hands of one human being, and it's unfair to blame him for not being able to control everything. And yet, he is the one who signed up to have those powers...criticizing him is not just a reflexive tendency to scapegoat, but the current "user-friendly interface" we have with our bureaucracy.
>>> The POTUS does not have direct power to do these kinds of things
He hasn't had the power to do a lot of things but that hasn't stopped him from shredding the constitution and using executive orders to override his own legislation that passed into law did it?
People want to say he doesn't have these powers, but even a cursory look at how he's been running his office is in direct conflict to the statement.
Ok, I took a cursory look and I see that he uses executive orders less often than any other president (normalized per term served).
As for the first sentence, what are the examples of his orders that are shredding the constitution? Does SCOTUS (final authority on constitutional law) agrees with your assessment?
>> I took a cursory look and I see that he uses executive orders less often than any other president (normalized per term served).
It doesn't matter how many orders he's issued, but the overall effect of constitutionality.
>> what are the examples of his orders that are shredding the constitution?
First you have to understand what executive orders can't do. They cannot make laws and they cannot stop laws from being carried out.
- This means his executive order to delay the employer mandate - but only for certain businesses. He said he will not enforce the mandate for businesses with 50-100 employees, but will enforce it for business with more than 100 employees.
THAT is effectively writing new a law. Congress said it starts at 50, but Obama says it starts at 100. By the constitution, only congress has this power, not the POTUS.
- Another example is his changes to the DACA act to include illegals who entered the country before 2010. Again, this is not something he has the power to do. By actively not enforcing exiting laws, and then creating his own set of criteria on who can stay in the US and who cannot, he's subverted the existing immigration laws and replacing it with his own.
- Another good example is how he said that person or business that doesn't support LGBT nondiscrimination cannot receive a business contract with the government. This means if a Muslim doesn't want to bake a cake for a gay couple, the government has the right to refuse to do business with them.
I won't even start with how unconstitutional such a law would be if it was passed by congress. Considering this is already protected under the Free Exercise Clause of the first amendment which states no citizen can be required to forfeit their right to do business with the federal government.
Again, only congress has the ability pass a law like this, but Obama did so anyways.
This is the issue with his orders. It has nothing to do with how many orders he's making, it's how he's using them. Effectively creating or overriding existing laws as he sees fit - something the POTUS should not have the power to do.
I don't agree with you that number of orders is irrelevant. It at the minimum is an indicator of administration policies.
As for your examples, I am not a constitutional scholar, neither is you. Right now they are just your opinions. For instance, Free Exercise Clause does not mention right to do business with the federal government. I'll wait for SCOTUS interpretation of the clause rather than yours.
He may not officially have the power to change things through the official bureaucratic channels, but he could stop them if he wanted. He has a lot of power that he doesn't tap into. For example, he has the ability to address the nation. With that power alone you can really stir up some change.
> For example, he has the ability to address the nation.
This power is pretty overrated.
How often have you turned on the TV and seen a network cover the entirety of one of Obama's speeches/press conferences, other than a major speech like the state of the union? Usually they cut away to something else after a little while or don't cover it at all, except maybe on a morning show.
Being from a country where the TV and radio networks are required to stop whatever they are doing to air a presidential speech, this sounds really strange.
Such a weak excuse. Sure a TV show might not play clippings from a speech of his, but if Obama actually offers to do a live interview on any TV show, no one would turn down that ratings boost.
Right! That's why I consider, for example, his campaigning on closing Guantanamo to be completely disingenuous.
Get on TV every single night, spread awareness about what's happening there, tell US citizens that we need to lead by example, and use the propaganda machine to create positive change, for once.
The truth is with a bad economy the more a president with lagging approval ratings gets involved in some issues the less likely their passage.
More importantly there's a limited amount of political capital you have as POTUS. While you may think Obama should have directed more of this to closing Gitmo, I think the big ticket accomplishments he spent that political capital on such as ACA were more important.
How can you honestly say the ACA was more important than shutting down a US run gulag that actively commits war crimes on a daily basis with approval from the entire chain of command?
I can honestly say it is not even close: access to health care via ACA saves more lives every year than the population of Gitmo by nearly two orders of magnitude.[1]
And it's not clear at all that Obama could have successfully closed Gitmo even had it been a higher priority of his. It is clear that he immediately ended interrogative torture [2] and made efforts to close it. There's still force feeding but that's also an issue in us prisons so closing gitmo and sending the detainees to other prisons is not necessarily solving anything there.
It's clear that he issued an executive order, which may or may not be utterly meaningless.
And Gitmo was just an example, not necessarily saying it would even be at the top of my list. Of course sending the detainees to other prisons is not the answer. These people need to be freed, now. Same deal with the multitude of other US military prisons and CIA black sites.
The word you used above was 'disingenuous' and I think that deeply mischaraterizes the issue. The overwhelming blame for gitmo being open today falls on the GOP.
The president can't arbitrarily shut things down or have much direct control. Congress both controls the purse strings and requires money to be spent. At best, POTUS can generally enforce the law, but NSA actually has authority to do mass surveillance from Bush era laws.
That said, Obama is clearly in favor of surveillance.
You do have to wonder what exaggerated lies they're told to believe that such surveillance is even necessary. I say lies, because if there were any real threats so many more terrorist attacks would happen than actually do.
The other theory I've seen is that people in power are used to having their life scrutinized publicly, so personally don't really care about privacy, so are the worst people to making decisions about such things.
I think it's more of an incentive problem, after a disaster like say Hurricane Katrina it's really hard to stand up and publicly say everything is working just fine.
Ideally, you want to be able to say well "where it not for the other guy we would have implemented my solution!" Which creates huge pressure based on how bad things look vs. how they actually are.
Setting aside the fact that the POTUS can't actually do that, when you think about the fact that information is what makes governing possible in the first place, it makes complete sense that they would explore this sort of thing. Given an vague(and ultimately impossible) mission of "stopping all terrorist attacks", it makes sense that the NSA would be exploring what they have been, and that TPTB would be wholly supportive of it.
This type of wholesale spying on law abiding citizens goes back 15+ years. I blame Obama, Bush, Congress, et al for not showing a backbone and ending these programs.
Edit: I'm in an exceedingly grumpy mood today. :-/
15? It's arguable that the government's institutional abuse of power to spy on law-abiding citizens began in earnest with J. Edgar Hoover, who began his tenure as the head of the FBI in 1924.
I want to revisit the earlier point in your context. You say that it goes back 15 years. You are right.
Each of these parties is jointly and severally liable for it. Obama is currently liable. I think it's just and right to criticize him for failure to act. His lack of fortitude is not excused by the lack of fortitude of others.
It's probably not correct that Obama could close down the entire NSA tomorrow. However, he has essentially complete control over what it does. If he wanted to direct it to do, for example, only military intelligence activities directed solely at warfighting intelligence, he could.
State and local police and prosecutors don't work for the federal government at all. Any avenue for mass surveillance is also an avenue for legitimate law enforcement investigation.
Yes it would. Cybercriminals are even more of a threat than spy agencies to most individuals.
[edit: in case it is unclear, I am saying that cybercrime is as strong reason for individuals to use ubiquitous encryption as government snooping not that it is a justification for government snooping]
Direct perceivable damage? Is there even a question?
Did the NSA over stepped it's bounds sure, but did anyone actually got directly hurt? Well not really.
The NSA is only as "bad" as the rest of the government, it's not a rogue agency that whisks people in the middle of the night to re-education camps, if the US ever becomes such state then encryption isn't going to help you.
This isn't an argument against encryption, or in favor of the NSA violating the privacy of US citizens (I am not a US citizen and I do not expect the NSA to care for my privacy) it's just an argument that people should put things in perspective.
East Germany didn't became a police state because of the Stasi, they've created the Stasi to enforce it. The US wasn't turned into a police state because of McCarthy-nism, it wouldn't turn into one because of the NSA even if they continue to violate the rights of US citizens unless there will be a major major political shift across all branches of the US government and it's population.
