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The media, the NSA and the Patriot Act

Former FBI Profiler Van Zandt shares his thoughts on privacy and security

Does the National Security Agency (NSA), also known as "No Such Agency," listen in on your every telephone call and track you every time you use the Internet?  Does the FBI use the Patriot Act to find out what library books you check out?  Both of these allegations could not be further from the truth.  But were you to get your news from only certain elements of the media, you might believe them.

In the world of the blind, the one-eyed man is king.  And in the world of media, who gets it out first gets to spin it any which way they want.  Sen. John Cornyn (R-Texas) accused The New York Times, a newspaper that's had its share of problems lately, with timing the release of accusations about the Bush administration's use of the NSA to spy on the communications of U.S. citizens with the release of a book related to this topic by one of its reporters.  Further, Cornyn suggested that the NYT might be trying to sabotage hearings by Congress concerning the renewal of certain provisions of the Patriot Act.

The Patriot Act
The Patriot Act was enacted by Congress after the 9/11/2001 attack on America.  Its intent was to provide the FBI and other law enforcement agencies with expanded investigative powers to root out and stop future acts of terrorism on U.S. soil and against U.S. interests.  Section 215 of this Act expanded the scope of records that could be obtained by such agencies.  Organizations such as the ACLU may speculate that the FBI would use this power to spy on people who criticize the current or future administrations in a manner that somehow offends either the FBI or the seated administration.  Further, they argue, Section 215 could be used to allow its FBI Agents to look over the shoulder of anyone checking out a library book to see what they're reading.  The ACLU thinks that the government would perhaps use such information to somehow attack an innocent person going about their constitutionally protected daily activities who had no overt intent to harm our country.

First and foremost, know that there are specific prohibitions that will not allow such investigations to identify critics of this or any other administration by virtue of any such investigation.  But do terrorists actually sneak into public libraries to use the local Internet connection to conduct their nefarious activities?  No, they simply walk in, sit down, and use library computers without even looking over their shoulder, as they have learned this is a way to reach other terrorists without a direct connection to their own computer or home address.  Does the FBI care if you are accessing, for example, adult pornographic Internet sites from your local library?  No.  Does it care if you're a suspected terrorist attempting to communicate to another known or suspected terrorist by defeating our government's electronic surveillance techniques while hiding behind the Internet computer desk in a library?  Of course it does.  What media and other critics have conveniently forgotten to tell the American public is that since the enactment of the Patriot Act none of the 35 or so Section 215 orders have been directed at libraries.  So if there has been judicious use of this Act to date, and if only one section of the Act pertains to libraries, and if it has been proven that terrorists use the library to conduct criminal activities against the U.S., why not extend this provision of the Act?

I'm the first to admit that any law or act can be subverted by those who are sworn to uphold the law.  Are there overzealous federal investigators or even rogue agents that could use this Act or any law illegally?  Possibly.  They are human, and subject to human frailty.  Take the issue of "sneak and peep" searches, secret searches conducted by federal agents authorized by equally secret court orders that allow such agents to legally search your property and not tell you about the search.  Are federal agents likely to use this law to break into the homes of ordinary law abiding Americans because they for some reason just what to "get us?"  Or will they use the law selectively to find and stop terrorists without giving the terrorist and terroristic organizations an edge by revealing that they're actively looking at them?  Remember, the search must still be authorized by a court upon the law enforcement agency providing probable cause that there is a legitimate reason, first to conduct a search, and, second, to keep it secret for at least 30 days before telling the person whose property was searched about it.  If they're wrong or if they use this power indiscriminately, sue them, charge them criminally, indict them and convict them, just like any other person who violates the law.  But don't allow today's devastating partisan politics or a newspaper's desire to be first with a story or sell books to be used as a weapon against the American people, a weapon that aids and supports those who would kill us were we to give them the chance.  Any information you give your enemy about how you investigate them will be used against you and your fellow citizens. That's the one "law" that terrorists will always respect.

The NSA has been in business since the early 1950's, first signed off on by then President Harry "the buck stops here" Truman.  It finds it roots in the code breakers of WWII that broke the Japanese and the German codes, thereby saving thousands of lives and probably insuring our victory in World War II.  It is one of the more secretive organizations in the world.  With a budget larger than either the FBI or CIA and with thousands of employees in the U.S. and overseas, the NSA is charged with collecting and analyzing signals intelligence, spy talk for telephone, radio, Internet, and other means of communications from around the world.  NSA is rumored to have more Ph.D. mathematicians than any other agency in the world, with their employees working with supercomputers that would make the CIA or NASA drool.  Many of our closest allies, including Britain, Australia, Canada, and other countries around the world have similar agencies in their countries that perform similar duties, and, in fact, that may share information with the NSA. 

For years it was understood that the CIA collected intelligence outside the U.S. and the FBI performed a similar task within the U.S.  9/11 changed all that.  These two, and other, intelligence agencies have been forced to share the same bed, and to share their toys and their information, in order to prevent another 9/11.  NSA is prohibited from intercepting or collecting information about U.S. persons, companies, or organizations without legal permission from the U.S. Attorney General.  In a recent media disclosure, it was reported that in support of the war on terrorism, the President had authorized, with the knowledge of some in both political parities, NSA to conduct warrantless phone taps on people in America placing calls to people outside the U.S., to places like Afghanistan. 

In its articles criticizing Bush's use of the NSA, the Times patted itself on the back by stating that "'some' information [from the Times article] that administration officials argued could be useful to terrorists had been omitted)."  (What about the rest?)  The Times confirmed what most terrorists and supporters of such individuals suspected anyway, that the FBI, CIA, NSA, and other similar three letter organizations were taking a serious look at them in every way they could.  Congress and many in the media took it upon themselves to criticize these same agencies for allowing 9/11 to happen in the first place. 

For example, what about those Middle Eastern men taking flying lessons in the U.S.  Why weren't the feds all over them at the time?  These agencies are left to protest that to have conducted such investigations on such men prior to 9/11 would have brought criticism from these same officials for discriminating against our Middle Eastern brethren who were then simply Saudis learning to fly 727s.

Well, it's four years and three-plus months since 9/11.  Although al-Qaida and other of its murdering offshoots have attempted to mount a successful attack in this country, none have succeeded to date, much to the credit of our intelligence and law enforcement agencies across all levels of government. A federal agent on the U.S.-Canadian border caught a terrorist coming across into America who planned to attack a west coast city.  Iyman Faris, a naturalized U.S. citizen, plead guilty to planning an attack on the Brooklyn Bridge.  Faris' activities were identified through investigations which included electronic monitoring of communications, i.e., the type of work the NSA does, and on and on - many identified by electronic monitoring, most of which we'll never hear about.

The newspaper report also suggests that in 2002 the President authorized the NSA to review calls and other communications made from the U.S. to persons outside the U.S. as part of ongoing anti-terror investigations.  The President defends his actions as part of his mandate to prevent a reoccurrence of the events of 9/11, something that most citizens apparently want him to prevent.  The balance is protecting us without taking away our constitutional rights and protections. 

It's like the 1,000 pound flower pots in front of many buildings in Washington, D.C. and across the country.  They are there to prevent suicide truck bombers from driving into the lobbies of such buildings and bringing these buildings to the ground.  To protect the buildings and their occupants, we've had to give up the ease of access that we once enjoyed.  The public is left to judge if the increased security is worth the increased restrictions that such laws and protections require.

In the case of the Patriot Act, 16 provisions of this Act will expire on Dec. 31.  Most people believe that our government, including the FBI and the CIA, was not up to the task of fighting terrorism prior to 9/11.  We had holes in our security, holes that the Patriot Act helped to plug.  The Patriot Act allowed the wall between law enforcement agencies and intelligence agencies to be torn down.  Now information in the possession of the CIA concerning a suspected terrorist can be shared with the FBI to prevent an act of terrorism in this country.  This makes sense to me.  I remember as an FBI Agent when I was forbidden from keeping a copy of a newspaper article in an FBI file - it was against the rules. 

With the rolling wire tap provision of the Patriot Act, the FBI can now keep up with the technology of terrorists, potential killers who change phones constantly to avoid detection.  We've provided similar legal assistance to the investigation of drug violations and organized crime; why not apply these same tools to (organized) terrorism?  Note that there has not been one, not one substantiated allegation of abuse of this Act to date, notwithstanding the many attacks on the Act by some in the media and others in this country. 

It's the 21st century and America and its law enforcement and intelligence agencies must use every tool at their disposal to legally fight against those who would willingly destroy our citizens and our very way of life.  As a Sergeant with the U.S. Army's 101st Airborne Division serving in Iraq recently wrote home in a letter, "Freedom.  One word but yet countless words could never capture its true meaning or power.  For those who have fought for it, freedom has a taste the protected will never know.  The biggest outcries of opposition to our cause are from those who have had no military experience and have not had to fight for freedom."  This young soldier and patriot knows what it is to lay it all on the line to protect the freedoms so many of us take for granted.  We get this same level of dedication and protection from our law enforcement and intelligence agencies in the war on terrorism. 

There is no massive conspiracy against the American people by the men and women of these agencies, no black helicopters circling overhead waiting to pounce on the innocent to tear our freedoms from our hands.  We live in a dangerous world and as the soldier from the 101st Airborne writes, we must fight to keep our freedoms.  The continued balance is between what's necessary and what's excessive, and this shouldn't be decided by a newspaper article.  That is a decision for our citizens to make as we ponder what level of safety and security we want balanced against the level of intrusion that we will allow in our lives and activities.  And no, unfortunately there's not an FBI or CIA Agent behind every mailbox or in every library.  They're too busy trying to stop another 9/11.  Let's give them the tools they need to do their job while not violating the view of Benjamin Franklin when he said, "They that can give up essential liberty to obtain a little temporary safety deserve neither liberty nor safety."  I wonder what old Ben would have said about today's "ben," Osama ben Laden, and his murderous organization.  How would Franklin have us obtain safety from this new type of threat while still protecting our liberty? 

Clint Van Zandt is an MSNBC analyst. He is the founder and president of Inc. Van Zandt and his associates also developed , a Website dedicated "to develop, evaluate, and disseminate information to help prepare and inform individuals concerning personal and family security issues." During his 25-year career in the FBI, Van Zandt was a supervisor in the FBI's internationally renowned Behavioral Science Unit at the FBI Academy in Quantico, Virginia. He was also the FBI's Chief Hostage Negotiator and was the leader of the analytical team tasked with identifying the "Unabomber."