Photo courtesy of WhiteHouse.gov

YesterdayPresident Obama spoke about much-needed reforms to how the NSA and other intelligence agencies target, gather, store, sift through, and disseminate “intelligence” information. As president, he can issue executive orders which must be obeyed by those within his chain of command, and that gives him significant power to change the way things are done.

That’s very nice, but those executive orders are NOT laws, and they can be set aside faster than the blink of an eye by this president or any president in the future.

The Constitution that President Obama mentions in his speech, which guarantees our freedoms, created three branches of government, a balance of powers, to protect those freedoms, and those branches have not been doing much since 2001. Meanwhile, the executive branch has been going wild.

As a cryptologic linguist serving in the United States Air Force Electronic Security Command, I was well versed on executive orders that had been issued by Presidents Ford, Carter, and Regan on intelligence issues. President Ford was the first president to specifically prohibit anyone working for the government from engaging in assassination. The order also sought to protect the American people from less lethal abuses committed by the Nixon administration, which had used intelligence agencies to gather information that could be used as tools to punish any of Nixon’s enemies.

In the years since leaving the military, I’ve grappled with understanding why the executive branch would have to issue orders against assassination or rules against spying on Americans without warrants or the misuse of intelligence assets for political purposes. Weren’t there laws against such things? Wasn’t Congress supposed to oversee the executive branch? Didn’t the Constitution clearly protect Americans from such abuses?

No and yes and maybe.

I believe Gerald Ford would have been horrified at the idea of the president having a “kill list” of people, whether they were foreigners on foreign soil, Americans on foreign soil, or… either type of person on American soil. If any of those scenarios is legal, I believe that Congress should slam the door on it by passing clear laws against it. If one elected official has the power to order an individual to be killed, without that individual having any due process other than, perhaps, a process carried out by the judge/jury/executioner branch (executive branch), there’s something severely broken that needs to be fixed.

The Constitution, to my mind and the minds of most people who work to protect America’s civil liberties (like the ACLU and some very diverse members of Congress), prohibits wiretapping, rifling through the belongings in our homes, and I believe it prohibits sweeping up communications metadata, etc.. belonging to American citizens without a warrant. National Security Letters, which have been used to pry business records on specific individual American citizens (and entire databases of customers) from companies like AT&T, Google, Facebook, are NOT warrants issued by any court of law. And, the prohibition against someone being served with one of those warrants from telling anyone that it happened, is ridiculous. How would you like it if I, as a bookstore owner, had to turn over records of what books you bought simply because some FBI agent handed me a letter telling me to do so? Should one branch of the government have the right to do all this, in the dark, with little or no oversight by the other branches of government? No.

The PATRIOT Act and all of the little congressional tweaks thereof CAN NOT overcome the protections offered in the Constitution unless we the people allow it to happen. And oops… so far, we have.

Except for a few very vocal members of Congress, most of our elected representatives and senators have gone along with this gigantic power grab by the current and previous administrations. Courts have not had many good opportunities to truly hear cases about these intelligence activities because either the situations have been deemed too crucial to national security to allow to move forward, or, sadly, no one with “standing” has been able to go into court with proof that his or her rights were violated.

Congress, so far, has refused to act. The courts have been somewhat impotent. The question then, is, do the people care? Even after Edward Snowden’s massive leaks of details on what the government has been doing, the outcry has been pretty mild, except perhaps for foreign leaders like Angela Merkel.

Do we have to wait until one of three other shoes drops before we really pay attention? Shoe 1: Someone who has access to all this data and the tools to spy on Americans uses that power to attack a political enemy, or a former girlfriend, or a spouse, or some popular TV star and gets caught. Shoe 2: An American citizen commits a serious crime and gets caught through the use of these tools, prosecuted, and is NOT convicted because the evidence was obtained illegally (fruit of the poisonous tree defense). Shoe 3: A drone strike goes bad and some VIP gets killed (some reality TV star or newscaster or movie star or member of Congress….).

Right now, innocent people are being killed by drones. Virtually all Americans are being spied on in violation of the Constitution. The executive branch has too much power and power does corrupt. Despite encouraging words from President Obama this week about reigning in the machine, we all need to remember that a kiss is just a kiss and an executive order is NOT a law.f


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