12333

Obama deserves much blame for the NSA scandal. But the president who got the scandal rolling was Ronald Reagan, who, in 1981, issued Executive Order 12333.

It is a sweeping mandate that outlines the duties and foreign intelligence collection for the nation’s 17 intelligence agencies. It is not governed by Congress, and critics say it has little privacy protection and many loopholes. What changes have been made to it have come through guidelines set by the attorney general or other documents.

The result is a web of intelligence law so complicated that it stymies even those tasked with interpreting it. As one former executive official said, “It’s complicated stuff.”

Confusing though it may be, the order remains the primary authority under which the country’s intelligence agencies conduct the majority of their operations.

Under its provisions, agencies have the ability to function outside the confines of a warrant or court order, if approved by the attorney general. Its Section 2.5 effectively gives the attorney general the right to authorize intelligence agencies to operate outside the confines of judicial or congressional oversight, so long as it’s in pursuit of foreign intelligence – including collecting information of Americans.

On days like this, I wish more conservatives read this blog, because I'd like their response to the following point:

In both Democratic and Republican administrations, the executive branch has often demonstrated a tendency to grab ever-greater powers. Unfortunately, most of us consider executive overreach a problem only when a president we don't like holds office. People refuse to think ahead. In 1981, the vast majority of Republicans would have given their enthusiastic approval to Executive Order 12333, had they been apprised of its existence. Republicans were so giddy to see one of their own in the oval office that they simply could not get their minds around the idea that these unnerving new powers would go not just to Reagan but to all of his successors, including the Democratic successors.

Dems are more likely than Republicans to criticize a president of their own party. Nevertheless, some Democrats still feel obligated to defend Obama at all times. They do so even when the topic turns to (say) the indiscriminate use of drones. But one day, the power to send drones against any and all perceived enemies will rest with a Republican -- and how will die-hard Obama apologists feel then?

All presidents require short leashes. In order to apply those leashes, we need a truly bipartisan, truly grassroots effort. How can we get our fellow Americans to understand that basic point?

About executive orders: It is possible, but difficult, for Congress to overturn an executive order. The problem is that the president will always veto any such bill.

Are executive orders constitutional? The point is debatable. The Constitution nowhere mentions such orders; their justification is found in Article II, Section 1 of the Constitution.

The executive Power shall be vested in a President of the United States of America.

And that's it, really. Since an executive order has the effect of legislation, I'm not at all sure that the Founders would have approved of such instruments. When a president issues an executive order, he always justifies the order by citing an extant law -- but these citations are usually just legalistic hugger-mugger.

Again: We need to shorten the leash.