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The Long Arm of the Constitution: The Administration Is Trying to Evade Its Reach

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In a belated Federal district court decision handed down today -- and stayed for now -- Judge Richard Leon determined that keeping records of Americans' phone calls probably violates the Constitution, and the government was ordered to stop collecting data on plaintiffs. He labeled the NSA program's technology "almost Orwellian" and suggested that James Madison, the author of the Constitution, would be "aghast" to learn that the government was encroaching on liberty in such a way.

As quoted in the New York Times on December 16 ("Federal Judge Rules Against N.S.A. Phone Data Program"), 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.

However, despite all the brazen lies 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, DNI) -- when describing the sweep of electronic surveillance programs -- it is becoming clearer that President Obama's 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, has recommended a key reform already vetoed by the president! Rather than split the NSA and the Cyber Command at Ft. Meade into separate agencies -- with the former headed by a civilian -- the White House has indicated that the two will remain under the unified command of a military officer.

The DNI Review Group on Intelligence and Communications Technology's recommendations are being reviewed by the White House, after which Obama is supposed to give a public speech. Most of the NSA's 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 been more than willing to collaborate with NSA in spying on calls.

Remember Gen. Alexander's 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 of December 13 reads: "By Cracking Cellphone Code, NSA has Capacity for Decoding Private Conversations." The agency's 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 always eager to cast his spying net as widely and intrusively as possible!

What is going down? The White House is maneuvering -- under the rubric of reform -- to keep the lid on the dark secret that NSA regularly spies on American citizens. Gens. Alexander and Clapper are being protected -- not to mention the NSC staff in the White House -- from later Congressional probes and lawsuits on behalf of citizens. The president is being protected from possible impeachment charges.

The more this process unwinds -- in the wake of Edward Snowden's earthquake of revelations -- an unavoidable suspicion grows that President Obama and his immediate advisors fear that the generals have secrets to tell about "rogue" or unconstitutional/illegal acts approved at the highest levels.

Alexander and Clapper know what they have briefed the president on, over time, and they are protecting all parties. The White House covers for them, and they cover for the White House -- 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. Feinstein and Rep. Rogers -- want to do so.

The Fourth Estate? The press will continue to feel of different parts of the elephant.

[After I left a career in foreign policy positions, from the U.S. Senate to the Arms Control & Disarmament Agency to the State Department -- where I had access to "compartmented" intelligence on strategic issues between the U.S. and the USSR -- I received from a former director a thorough tour of NSA operations at the Ft. Meade campus.]