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Saturday, February 18, 2006

NSA Hearing: Plain Reading of Statutes Shows Criminal Conduct in DoD and NSA

Some in Congress want to sweep the NSA issue under the rug. They appear to agree to change the statutes.

Small problem. There are many statutes that have been violated. How many statutes does the Congress plan to retroactively say do not apply?

[ For your convenience, there is an NSA Hearing Archive; Click here to read other content in the NSA Hearing Archive.]

There's quite a list of "other statutes" Congress will have to sweep under the rug.

The issues are simple, UCMJ Articles 133 and 134 apply:

  • Discredit. It is not in the national security interests of the United States to violate the law. Constitutional violations do not reflect great credit upon the service or the service member's oath of office.

  • Discipline. When commanders ignore DoD inspections and criminal investigations, training suffers. Troops no longer see a connection between what they learn and what goes on.

  • Dereliction. The Joint Staff cannot credibly maintain an effective fighting force when senior commanders violate the law, and the troops and contractors see these violations are not sanctioned.

  • Corruption. Members of Congress, it would appear, have received valuable consideration -- offered, promised, or potential harm avoided -- in exchange for taking no action on the NSA issue. It remains to be seen what other matters of criminal law Congress plans to obstruct, not review, or do nothing about. Fortunately, the judicial system is not within Congress.

    * * *

    NSA Major Acquisition Program Management Risk Areas

    It is clear there are several problems:

  • A. The NSA contract requirements were not consistent with the statutes;

  • B. These NSA contract specifications were known to be in violation of the law;

  • C. The final product did not meet the intent of Congress;

  • D. The software design and testing did not meet the statutory requirements; and

  • E. The actual DoD reporting to Congress is at odds with the lawfully required reporting information.

    Decision to not investigate is unacceptable

    One of the ideas of the laws is that you follow them. It may be a simple matter to ignore the problems and sweep the NSA matter under the rug. Bluntly, if the NSA matter is swept under the rug, this doesn't solve the entrenched system which condones violations of the status.

    It is a simple matter to ignore the problem. The issue is what is the effect of ignoring and willfully neglecting these issues.

    This subsequent misconduct is malfeasance and criminal negligence. This is not a partisan issue. These are matters of criminal law.

    We remain unclear why this failure occurred; and how this failure will manifest itself in other areas. The larger issue is clear: How did the system -- which supposedly is designed to detect and prevent these violations -- fall down.

    Well known leadership problem

    There are other areas within DoD that work under the same system. Given the failed system in NSA, it's reasonable to conclude the system is failing in all areas. This is a question of government responsiveness, accountability, and legitimacy.

    There are many issues which have been ignored. There are patterns in the failures of oversight in the NSA, Katrina, Iraq WMD issue, and the Iraq invasion. Based on the volume of evidence, it appears the 9-11 conclusions are at odds with what is going on, and what this government is capable of doing.

    Senior Executive Service

    The NSA Intelligence Oversight Board has failed.

    Inspector General

    It remains to be seen how many other areas the DoD IG is reviewing in a similarly cursory manner; or has been obstructed from doing its job. There are many checklists within the Executive Departments and Inspector Generals office.

    We have yet to understand what happened with the NSA Inspector General; nor do we know the range of other issues that have been ignored.


    The isolated decision to "not review the NSA illegal conduct" is a failure of oversight. The public will have to use the available information to make informed judgments whether Congress is up to the job; or what other lawful reforms are needed to oversee this wayward executive.