In a D.C. federal district court decision handed down earlier this week, Judge Richard Leon determined that keeping records of Americans phone calls probably violates the Constitution. Labeling the NSA programs technology almost Orwellian, he suggested that James Madison, the author of the Constitution, would be astounded to learn that the government was encroaching on liberty in such blanket fashion.
Judge Leon wrote in his ruling: I cannot imagine a more indiscriminate and arbitrary invasion than this systematic and high-tech collection and retention of personal data on virtually every single citizen for purposes of querying and analyzing it without prior judicial approval. Surely, such a program infringes on that degree of privacy that the founders enshrined in the Fourth Amendment.
Moreover, he powerfully criticized the secret Foreign Intelligence Surveillance Court that supervises the program. He noted that the judges on the court have issued numerous orders they read like a machine authorizing it, even as the government repeatedly made misrepresentations and inaccurate statements about the program.
However, despite all the falsehoods fed to Congress and the courts and the public by Gens. Keith Alexander (National Security Agency director) and James Clapper (the director of national intelligence) when describing the sweep of electronic surveillance programs it is becoming clearer that President Obamas promise of reforms in government electronic spying will constitute a molehill, not a mountain.
A task force appointed by the White House, but allowed to hold no public meetings while functioning out of Clappers office, has recommended a key reform already vetoed by the president. Rather than split the NSA and the Cyber Command at Fort Meade into separate agencies with the former headed by a civilian the White House recently indicated that the two will remain under the unified command of a military officer
The DNI Review Group on Intelligence and Communications Technologys recommendations have been reviewed by the White House and were released to the press late Wednesday. Most of the NSAs surveillance programs will be allowed to continue, but ownership control of the massive inventory of telephone records may be shifted to individual phone companies! The latter includes AT&T, the largest provider of GSM cellphone services in the United States, which has voluntarily collaborated with NSA in spying on calls.
Remember Alexanders repeated assurances that NSA collects only the phone numbers of Americans domestic calls, but does not listen in on the content of conversations? A Washington Post headline Dec. 13 read: By cracking cellphone code, NSA has capacity for decoding private conversations. The agencys ability to crack encryption used by the majority of cellphones in the world offers it wide-ranging powers to listen in on private conversations. Only a naif would think that such a capacity is not in use by the general who by his own testimony has wanted to cast NSAs spying net as widely as possible.
What is going down? The White House is maneuvering under the rubric of reform to keep the lid on the dark reality that NSA regularly spies on American citizens on American soil. By highly classifying and hiding the process, Alexander and Clapper not to mention the NSC staff in the White House are being protected from later congressional probes and lawsuits on behalf of citizens. The president is being protected from possible impeachment charges. An unavoidable suspicion arises that President Obama and his immediate advisers know that the generals have secrets to tell about rogue or unconstitutional or illegal acts approved at the highest levels. Therefore, a mantle of secrecy is thrown over everything.
Alexander and Clapper know what they have briefed the president on, over time, and they are protecting all parties. They cover for the White House, and the White House covers for them. Make no mistake about it
And the congressional intelligence oversight committees will settle for what they are given, piecemeal, in the end. They are in no position to independently probe deeply into the actual operations of the NSA, nor do the chairs Sen. Dianne Feinstein and Rep. Mike Rogers want to do so.
The Fourth Estate? The press will continue to feel of different parts of the elephant.
William E. Jackson of Davidson served under Presidents Kennedy and Carter and has been a foreign policy scholar at the Brookings Institution.