THE BURNED OVER DISTRICT

While everybody eagerly blames W or PBO for the outrageous assault on civil liberties being committed daily by the NSA, it appears that the real source of their authority is a Ronald Reagan Executive Order signed back in his early Alzheimers days.

The National Security Agency’s collection of information on Americans’ cellphone and Internet usage reaches far beyond the two programs that have received public attention in recent months, to a presidential order that is older than the Internet itself.

Approved by President Ronald Reagan in 1981, Executive Order 12333 (referred to as “twelve-triple-three”) still governs most of what the NSA does. 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.

Neither the office of Attorney General Eric Holder nor that of Director of National Intelligence James Clapper would comment about 12333.

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.

“The Attorney General hereby is delegated the power to approve the use for intelligence purposes, within the United States or against a United States person abroad, of any technique for which a warrant would be required,” 12333 reads.

Monitoring the actual content of Americans’ communications still requires a warrant under 12333, but metadata – the hidden information about a communication that tells where a person is, who he’s communicating with, even the number of credit cards used in a transaction – can be swept up without congressional or court approval.

It seems certain that abuses as culturally embedded and on such a large scale as the NSA has been committing need a long lead time. Longer even than that allotted to the evil crew of W's.