There is no spying on Americans," and “We don't have a domestic spying program." This morning, New York Times national security reporter Charlie Savage gave the latest example of just how brazenly the president is lying:On Tuesday, President Barack Obama told Jay Leno that "
The National Security Agency is searching the contents of vast amounts of Americans' e-mail and text communications into and out of the country, hunting for people who mention information about foreigners under surveillance, according to intelligence officials.
The N.S.A. is not just intercepting the communications of Americans who are in direct contact with foreigners targeted overseas, a practice that government officials have openly acknowledged. It is also casting a far wider net for people who cite information linked to those foreigners, like a little used e-mail address, according to a senior intelligence official.
While it has long been known that the agency conducts extensive computer searches of data it vacuums up overseas, that it is systematically searching — without warrants — through the contents of Americans' communications that cross the border reveals more about the scale of its secret operations.
As is the custom, we are learning about this latest intrusion into what used to be protected by the Fourth Amendment not because the Obama administration is voluntarily kick-starting some "debate," but because "a senior intelligence official" leaked inside information to a motivated investigative reporter. In fact (and also as is the custom), we don't know for sure the Constitution-bending legal theory the government is using:
There has been no public disclosure of any ruling by the Foreign Intelligence Surveillance Court explaining its legal analysis of the 2008 FISA law and the Fourth Amendment as allowing "about the target" searches of Americans' cross-border communications.
The president's smug lies, like National Intelligence Director James Clapper's bald-faced untruthing in front of Congress, suggest a National Security culture accustomed to doing and saying anything without fear of adverse consequences. It's a reminder that the entire legal edifice of nat-sec secrecy was built on an ass-covering lie.
The Fourth Amendment was written by leaders of a country much more vulnerable to attack and intrigue than ours, yet the Founders understood that the purpose of establishing co-equal branches of government was to limit the ability of any one branch to accumulate (and therefore abuse) unchecked power. When the executive branch effectively bars the public from knowing that it can be spied on, from knowing whether it is being spied on, and from even knowing what legal theory the feds are using in the conduct of their spying, then co-equal government is a dead letter. The legislative branch cannot be responsive to public opinion when the public is prevented from having one.
So no wonder the president is willing to get called out for lying rather than actively advance the truth about our national security state. The more Americans slowly begin to realize the extent of their unfreedom, the more they rebel against it. As the press thinker Jay Rosen recently put it, "Can there even be an informed public and consent-of-the-governed for decisions about electronic surveillance, or have we put those principles aside so that the state can have its freedom to maneuver?" The answer, for the last 12 years, has been the latter. May that continue to change.