National Defense Resource Preparedness Executive Order and the NSA’s New Data Center

Flying under the radar of the NCAA tournament and all kinds of other stuff, Barack Obama recently signed an executive order about “National Defense Resource Preparedness” (NDRP).  More recently, a second one would’ve flown entirely under the radar if not for Wired Magazine, which details the massive new data center being built by the National Security Agency (NSA).  We’ll look at both briefly here.

Let’s start with the NSA center very quickly.  The Wired piece really does a great job of detailing the center, so I highly recommend you take the time to read it (or at least skim because it’s pretty long).  All I’d really add is that this is some scary stuff to me because the Obama administration also recently issued guidelines stating that the intelligence community could now store information on American citizens with no suspected ties to terrorism for up to five years.  Before, they had to destroy it immediately.  It makes me wonder what the over/under is on how long it’ll take the government to expand that five-year window and how big they’ll expand it.  That sounds like an attack on the 4^th Amendment to me. 

This is a textbook example of scope creep or the slippery slope.  We see this very often with the government and I have plenty of examples.  They’ll start off with a new or existing power (let’s leave aside the question of the legitimacy of the power) with a very narrow target or scope.  Over time, that target or scope just has a way of expanding well beyond what it started with.  In this case, we’re talking about spying programs that were initially focused on ‘threats with suspected or confirmed ties to terrorism’ and have since spread to everyone.  I suppose the government could now view everyone as a threat, which makes me wonder whatever happened to the concept of presumed innocent until proven guilty. 

And we move onto the NDRP.  I was at first inclined to dismiss the NDRP order because I figured it would simply be a bit of organizational reshuffling.  Seeing as how we now have a Department of Homeland Security (DHS), I was thinking it’d just be a matter of fitting them into the mix somehow.  Instead, DHS is now in charge.  I suppose we could say that DHS is now the “emergency czar”.  Sure, there’s a security element to pretty much any national emergency, even natural disasters, but I question the prudence of putting DHS in charge. 

We’ve had similar orders on file for ages that put the government in charge in times of “emergency”.  It makes sense to do that.  To a degree, it’s a logical extension of the concept of eminent domain, in which the government can claim, with fair compensation, property for development for the public good from a private party, usually for the development of something like power lines or roads/bridges.  Kelo v. New London, CT was a recent Supreme Court ruling on the matter that greatly expanded the government’s power here (erroneously, in my view, but that’s a whole other story).  Eminent domain and similar powers are necessary, but they have to be very narrowly-defined so as to prevent tyranny and abuse. 

Here’s the problem.  The government claims they can effectively seize anything they want without compensation.  Section 103, subsection c provides the authority to do so:

(c)  be prepared, in the event of a potential threat to the security of the United States, to take actions necessary to ensure the availability of adequate resources and production capability, including services and critical technology, for national defense requirements;

Section 103, subsection c is nothing new.  Let's be perfectly clear about that.  Obama didn't change anything from the 1994 version of the order.  However, just because it's been on the books for 18 years doesn't necessarily somehow make it ok.  This is still a dangerously broad power for the government to claim.  "[T]o take actions necessary," could, in my view, entail plunder without compensation.

Section 201,subsection a defines the resources in question.

Sec. 201.  Priorities and Allocations Authorities.  (a)  The authority of the President conferred by section 101 of the Act, 50 U.S.C. App. 2071, to require acceptance and priority performance of contracts or orders (other than contracts of employment) to promote the national defense over performance of any other contracts or orders, and to allocate materials, services, and facilities as deemed necessary or appropriate to promote the national defense, is delegated to the following agency heads:

(1)  the Secretary of Agriculture with respect to food resources, food resource facilities, livestock resources, veterinary resources, plant health resources, and the domestic distribution of farm equipment and commercial fertilizer;

(2)  the Secretary of Energy with respect to all forms of energy;

(3)  the Secretary of Health and Human Services with respect to health resources;

(4)  the Secretary of Transportation with respect to all forms of civil transportation;

(5)  the Secretary of Defense with respect to water resources; and

(6)  the Secretary of Commerce with respect to all other materials, services, and facilities, including construction materials.

Anything that is, “[D]eemed necessary and appropriate to promote the national defense,” can be seized at will by the federal government.  This includes food, energy, medical supplies, transportation, water, and, “All other materials, services, and facilities.” (read: anything else).  Obama didn't create the wording, but by keeping it around, he's reaffirmed it and granted legitimacy to it.  Surely, I’m not the only one troubled by this.

The NSA center and the reaffirmation of the NDRP are both part of what I see as a troubling trend.  In upcoming posts, I’ll recap the list and then I’ll talk about where I see it going.

Links:

http://www.whitehouse.gov/the-press-office/2012/03/16/executive-order-national-defense-resources-preparedness

http://www.wired.com/threatlevel/2012/03/ff_nsadatacenter/all/1

UPDATE: 31 March 2012

I reworked a little bit of the post to clarify that the NDRP isn't much new.  I was sending a mixed and wrong message in this regard.  Some passages suggested it wasn't anything new, others suggested it was.  So, I cleaned it up to be consistent and correct that it's nothing new (still troubling, but nothing new).  Thanks, Shannon.