• E.O. 12333: End-Running the Fourth Amendment

    September 22, 2014

    Tags: , , , ,
    Posted in: Democracy, Post-Constitution America




    Historians of the Constitutional Era of the United States (1789-2001, RIP) will recall the Fourth Amendment to the Constitution, the one that used to protect Americans against unreasonable and unwarranted searches.

    The Supreme Court had generally held that searches required a warrant. That warrant could be issued only after law enforcement showed they had “probable cause.” That in turn had been defined by the Court to require a high standard of proof, “a fair probability that contraband or evidence of a crime will be found in a particular place.”

    The basic idea for more or less over 200 years: unless the government has a good, legal reason to look into your business, it couldn’t. As communications changed, the Fourth evolved to assert extend those same rights of privacy to phone calls, emails and texts, the same rules applying there as to physical searches.

    That was Then

    It was a good run. The Bill of Rights was designed to protect the people from their government. If the First Amendment’s right to speak out publicly was the people’s wall of security, then the Fourth Amendment’s right to privacy was its buttress. It was once thought that the government should neither be able to stop citizens from speaking nor peer into their lives. Folks, as our president now refers to us, should not have to fear the Knock on the Door in either their homes or The Homeland writ large.

    In Post-Constitutional America (2001-Present), the government has taken a bloody box cutter to the original copy of the Constitution and thrown the Fourth Amendment in the garbage. The NSA revelations of Edward Snowden are, in that sense, not just a shock to the conscience but to the concept of privacy itself: Our government spies on us. All of us. Without suspicion. Without warrants. Without probable cause. Without restraint.

    The government also invades our privacy in multiple other ways, all built around end-runs of the Fourth Amendment, clever wordplay, legal hacks and simple twisting of words. Thus you get illegally obtained information recycled into material usable in court via what is called parallel construction. You have the creation of “Constitution Free” zones at the U.S. border. The Department of Justice created a Post-Constitutional interpretation of the Fourth Amendment that allows it to access millions of records of Americans using only subpoenas, not search warrants, to grab folks’ emails by searching one web server instead of millions of individual homes. Under a twist of an old “privacy law,” doctors disclose your medical records to the NSA without your permission or knowledge. SWAT raids by local police designed to break into African-American businesses on harassment expeditions are also now OK.

    The Center of It All: Executive Order 12333

    The most egregious example of such word-twisting and sleazy legal manipulations to morph illegal government spying under the Fourth Amendment into topsy-turvy quasi-legal spying is the use of Executive Order 12333, E.O. 12333, what the spooks call “twelve triple three.” The Order dates from 1981, signed by Ronald Reagan to buff up what his predecessors limited in response to overzealous law enforcement activities. The Gipper would be mighty proud that his perhaps most lasting accomplishment was legalizing surveillance of every American citizen.

    Back to today. Despite all the secret FISA court decisions and as yet uncovered legal memos, most collection of U.S. domestic communications and data is done under E.O. 12333, section 2.3 paragraph C.

    Specifically, the one sentence that the government believes allows them to bypass the Fourth Amendment says the intelligence community can “collect, retain, or disseminate information concerning United States persons” if that information is “obtained in the course of a lawful foreign intelligence, counterintelligence, international narcotics or international terrorism investigation.”

    So, the work-around for the Fourth Amendment is as follows: NSA collects massive amounts of data on foreigners, often by hoovering up every fragment of electronic stuff flowing around the U.S. it can. So, while purportedly looking for a single terrorist email enroute to Yemen (“the needle”), the NSA collects every single email from Google, Yahoo and Microsoft (“the haystack.”) Thus, any American’s emails caught in that net are considered to have been collected “incidentally” to the goal of finding that one terrorist email. The NSA claims that the Executive Order thus makes its mass-scale violations of the Fourth Amendment legal.

    Tom Drake, perhaps the best-known NSA whistleblower prior to Edward Snowden, put it in simpler terms: “12333 is now being used as the legal justification for everything.”

    Oh and hey reformers: Executive Orders by one president stay in force until another president changes or negates them. We could have one at work today written by George Washington. What that also means is that Congress, should they regain consciousness, can’t change an E.O. Congress could in theory pass a law making the contents of an E.O. invalid, but that presumes someone in Congress knows the order exists and what it says. Many E.O.’s are classified and if they are not, such as 12333, the legal documents behind them and FISA interpretations of them, likely are.

    Snowden Knew

    Again, as a historical note, executive orders– basically dictates from the president– once did not trump the Constitution. However, in Post-Constitutional America, they do.

    As for this realization we have come upon, E.O. 12333, well, we’re all behind the curve. Edward Snowden, while still at NSA, wrote a now-famous email to the spy agency’s legal advisor, asking specifically whether an Executive Order has more legal force than an actual law passed by Congress, or indeed the Constitutional itself. The NSA’s answer was a bit convoluted, but said in a pinch the Constitution wins (wink wink), even while acting as if the opposite is true.

    As General Michael Hayden, then head of the NSA, said in a blistering blast of Newspeak, “I am convinced that we are lawful because what it is we’re doing is reasonable.”

    Ask Obama This Question

    So let’s make it simple: Journalists with access to the president, ask this question directly: Why is E.O. 12333 being used today, interpreted by the FISA court or any other means, stating that the NSA’s surveillance of U.S. citizens is “reasonable,” and thus no warrant is required for the surveillance to continue and remain constitutional under the Fourth Amendment?

    Of course getting an answer out of Obama will not happen. After all, he is the Constitutional law professor who studied the document the same way a burglar learns about an alarm system. TO BREAK IT BETTER.


    BONUS: The stuff above is real amateur-level writing on E.O. 12333. When you are ready to dig in deep, get over to Marcy Wheeler’s blog. She is the smartest person working in journalism today on the subject. My debt to her is hereby acknowledged.



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    Copyright © 2019. All rights reserved. The views expressed here are solely those of the author(s) in their private capacity.

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  • Recent Comments

    • Rich Bauer said...

      1

      The sad fact is we got all this technology and still we ain’t any safer. Note that ex-soldier reportedly suffering from PTSD who got inside the White House. While 12333 may be a nefarious plot to in-PRISM US, I think it is more likely the action of a blind giant flailing about.

      Government’s motto: We ain’t evil, we is incompetent. If the taxpayers ever find out, they will fire US all and demand their money back.

      09/22/14 12:08 PM | Comment Link

    • Rich Bauer said...

      2

      “Of course getting an answer out of Obama will not happen.”

      The lapdog Media would NEVER bite the hand that feeds it or gives its newsbites. It ignored the Climate March in your city while giving ample coverage to a coed who disappeared last week.

      09/22/14 12:50 PM | Comment Link

    • Rich Bauer said...

      3

      I wouldn’t worry too much about the future because I don’t think we are going to live to see it.

      http://www.nytimes.com/2014/09/22/us/us-ramping-up-major-renewal-in-nuclear-arms.html?google_editors_picks=true

      09/22/14 12:54 PM | Comment Link

    • bloodypitchfork said...

      4

      Peter said:

      “Tom Drake, perhaps the best-known NSA whistleblower prior to Edward Snowden, put it in simpler terms: “12333 is now being used as the legal justification for everything.”
      Warning!!! Long diatribe ahead!

      Speaking of Drake, notwithstanding the insidious coup d’etat of EO12333, there is something far more astounding, that really hasn’t caught anyones attention. Mine included. At the heart of this whole post 09/11 expansion of NSA’s surveillance is a cover-up of such magnitude as to boggle the mind. And now, it has been exposed. Yet the entire MSM establishment has conspired to keep this expolsive information from being disemminated, as they know, if it were, the USG would be forced into such a state of emergency, unbefore equalled since Dec. 7th, 1941. Here is the crux.

      In reality, Michael Hayden, as head of the entire Intelligence community, notwithstanding his spearhead of warrantless spying on US citizens by virtue of the power vested in him by Bush to initiate the illegal invasive installation of technology at various Telecom internet connection points post 9/11, has, with the cooperation and conspiracy of other IC officials, such as James Clapper, to thwart any discovery of the knowledge, that because certain people within the NSA, prior to 9/11, KNEW the key elements of the 9/11 perpetrators, had connected the dots, but because of decades of interagency turf battles, REFUSED to diseminate information to the White House/CIA and FBI. What this actually means is…

      ………these officials at NSA, are the ACTUAL CAUSE OF 9/11!!!!!!

      In no uncertain terms, what we have here is a monumental cover-up of such scale it makes Watergate, the Church Committee discoveries, and all other current and previous scandals look like children squabling over toys. Make no mistake. These people have committed a crime that caused the death of 3000 American citizens. Unfortunately for them, witness’s have come forward to testify to their knowledge. And these NSA criminals KNOW IT. What is astounding to me is..these witness’s co-wrote a letter to Obama, clear back in January 2014, outlining the extent of this knowledge, yet it only came to my attention as of yesterday. I don’t know exactly if or when it was released or published to the net before then, but I do know this. Had this letter been published by the MSM establishment, there would have been a revolution within 24 hours. At least in my universe. However…read it yourself. For me, this is the watershed moment of my understanding of the depth of corruption within our government. Given not one word from the Whitehouse has come out, I’ll take this as evidence the coverup is being perpetrated all the way to the highest echelons of our government. What we are talking here, is TREASON on a scale, so vast, it defies imagination.

      However, you judge for yourself…..

      http://consortiumnews.com/2014/01/07/nsa-insiders-reveal-what-went-wrong/

      Given the conspiracy theories surrounding the event of 9/11, I now see the final piece of the puzzle. In reality…we’ve been conned. Totally, fucking conned.

      09/22/14 3:25 PM | Comment Link

    • Rich Bauer said...

      5

      09/22/14 4:18 PM | Comment Link

    • TruthBTold said...

      6

      I had a few lines to leave as a comment, but by the time I got through Bloodypitchfork’s comments, found myself speechless! (and that’s putting it mildly!) ALl I can now add to that rather All-encompassing commentary is: Ditto & my sense of awe for saying it the way it is..& to you Peter, get ready to add another name to your tagline!
      Y/Truly!
      FS

      09/22/14 5:03 PM | Comment Link

    • bloodypitchfork said...

      7

      Rich said:
      “Taxpayers: We want our money back.” I’d settle for a Congressional investigation by virtue of Provost Marshal Misprison of Felony indictment of every single person with knowledge of this cover-up, all the way to the White House, as this monstrosity is truly at the heart of what has happened in Murka. Impeachment is a beginning, but I want to see heads fucking roll. This is going to come out eventually. They know it. I know it. It’s only a matter of time, and I suspect heads are exploding exponentially within NSA. After all, look what they tried to do to these whistleblowers within NSA. The criminals knew they had to remove them from access anyway they could. These lying scumbags are responsible for 3000 American lives on 9/11. P E R I O D. That’s why.

      09/22/14 6:05 PM | Comment Link

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