E.O. 12333: End-Running the Fourth Amendment | The Dissenter

Most collection of U.S. domestic communications and data is done underE.O. 12333, signed byRonald Reagan

Historians of the Constitutional Era of the United States (1789-2001, RIP) will recall the Fourth Amendmentto 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 couldnt. 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 Amendments right to speak out publicly was the peoples wall of security, then the Fourth Amendments 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.

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E.O. 12333: End-Running the Fourth Amendment | The Dissenter