While the polit­i­cal com­men­ta­tors in the nation’s cap­i­tal are wrapped up in the debate over what to do about ISIS, and as one third of the Sen­ate and near­ly all mem­bers of the House cam­paign for re-elec­tion, the president’s spies con­tin­ue to cap­ture mas­sive amounts of per­son­al infor­ma­tion about hun­dreds of mil­lions of us and lie about it.

The pres­i­dent con­tin­ues to dis­patch his Nation­al Secu­ri­ty Agency spies as if he were a law unto him­self, and Con­gress — which is also being spied upon — has done noth­ing to pro­tect the right to pri­va­cy that the Fourth Amend­ment was writ­ten to ensure. Con­gress has tak­en an oath to uphold the Con­sti­tu­tion, yet it has failed mis­er­ably to do so. But the spy­ing is now so entrenched in gov­ern­ment that a sin­is­ter and large­ly unno­ticed prob­lem lurks beneath the surface.

NSA doc­u­ments released by Edward Snow­den show that the feds seri­ous­ly deceived Con­gress and the courts in an effort to spy upon all of us and to use the gath­ered mate­ri­als in crim­i­nal pros­e­cu­tions, even though they told fed­er­al judges they would not. Among the more nefar­i­ous pro­ce­dures the feds have engaged in is some­thing called “par­al­lel recon­struc­tion.” This pro­ce­dure seeks to hide the true and orig­i­nal source of infor­ma­tion about a crim­i­nal defen­dant when it was obtained unlawfully.

For exam­ple, if the NSA, while uncon­sti­tu­tion­al­ly lis­ten­ing to the con­ver­sa­tions of Amer­i­cans hop­ing to hear about plots to harm oth­er Amer­i­cans (it has revealed no such plots from among the tril­lions of pri­vate con­ver­sa­tions it has mon­i­tored since 2005), comes across evi­dence of a bank rob­bery, the NSA will pass that evi­dence on to the Depart­ment of Jus­tice. The NSA rou­tine­ly does this notwith­stand­ing rep­re­sen­ta­tions to the FISA court that autho­rizes its spy­ing that it is not in the busi­ness of gath­er­ing evi­dence in crim­i­nal cases.

It makes those claims because the George W. Bush and Barack Oba­ma DOJs have argued to the pub­lic and to the FISA court that the Fourth Amend­ment, which pro­hibits all search­es and seizures with­out a war­rant, some­how applies only to crim­i­nal inves­ti­ga­tions and not to domes­tic spy­ing. No Supreme Court deci­sion has ever stood for that propo­si­tion, and the plain lan­guage of the Fourth Amend­ment makes no dis­tinc­tion between intel­li­gence gath­er­ing and evi­dence gathering.

Rather, the lan­guage of the amend­ment is so broad and sweep­ing (“The right of the peo­ple to be secure in their per­sons, hous­es, papers, and effects against unrea­son­able search­es and seizures shall not be vio­lat­ed” except by a search war­rant issued by a judge upon prob­a­ble cause.) that for 230 years it has been held to restrain and reg­u­late all gov­ern­ment efforts to gath­er pri­vate infor­ma­tion — no mat­ter their purposes.

Nev­er­the­less, the NSA’s agents and lawyers felt it nec­es­sary to con­coct this ground­less, disin­gen­u­ous and fic­tion­al legal dis­tinc­tion in order to per­suade the FISA court that it is legal­ly accept­able to per­mit unteth­ered spy­ing so long as the fruits of that spy­ing are not used in crim­i­nal pros­e­cu­tions. Curi­ous­ly and naive­ly, judges of the FISA court bought that argument.

So, what hap­pens when the spy­ing uncov­ers ordi­nary crim­i­nal behav­ior unre­lat­ed to nation­al secu­ri­ty? In order to keep its hands clean, so to speak, the NSA sends that evi­dence to the DOJ, whose lawyers and agents in cahoots with the NSA then con­coct an expla­na­tion as to how the DOJ came upon the evi­dence. Of course, that expla­na­tion curi­ous­ly and care­ful­ly omits the men­tion of domes­tic spy­ing. DOJ lawyers know that if the begin­ning of the process of obtain­ing evi­dence is found to be uncon­sti­tu­tion­al, then the evi­dence itself can be use­less in court.

This is what lawyers and judges call the “fruit of the poi­so­nous tree.” Were this not so — that is, if the gov­ern­ment could spread any net as broad and as wide as it wished and use what­ev­er the net caught as evi­dence in crim­i­nal pros­e­cu­tions — then the Fourth Amendment’s search war­rant require­ment would be mean­ing­less because it would not pro­tect the right to pri­va­cy as its authors intended.

Thus, in order to main­tain the façade of spy­ing only for domes­tic intel­li­gence pur­pos­es, and to appear faith­ful to pub­lic and secret promis­es (the FISA court only sits in secret) that any evi­dence of crim­i­nal behav­ior inad­ver­tent­ly dis­cov­ered by NSA spies will not be used in crim­i­nal pros­e­cu­tions, and so as to keep the mech­a­nisms of domes­tic spy­ing hid­den from non-FISA fed­er­al judges who are more like­ly to apply nor­ma­tive inter­pre­ta­tions of the Fourth Amend­ment than their FISA court col­leagues, the NSA and the DOJ began the process of par­al­lel reconstruction.

Par­al­lel recon­struc­tion con­sists large­ly of the cre­ation of a false begin­ning — an untrue one — of the acqui­si­tion of evi­dence. This, of course, is crim­i­nal. Lawyers and agents for the NSA and DOJ may no more law­ful­ly lie to fed­er­al judges and crim­i­nal defense attor­neys about the true ori­gins of evi­dence than may a bank rob­ber who tes­ti­fies in his own defense claim­ing to have been at Mass at the time of the robbery.

While par­al­lel recon­struc­tion is decep­tive, unlaw­ful and uncon­sti­tu­tion­al, I sus­pect it is but the tip of a dan­ger­ous ice­berg spawned by the unbri­dled NSA spy­ing that Bush and Oba­ma have giv­en us. When you mix a lack of fideli­ty to the plain mean­ing of the Con­sti­tu­tion with a legal fic­tion, and then add in a drum­beat of fear, enforced secre­cy and bil­lions of unac­count­ed-for tax­pay­er dol­lars, you get a dan­ger­ous stew of unin­tend­ed tyran­ni­cal consequences.

Is this the gov­ern­ment the Framers gave us? Is this the gov­ern­ment any­one vot­ed for? Is this a faith­ful and moral com­mit­ment to the Con­sti­tu­tion, the rule of law and per­son­al lib­er­ty? The answers are obvious.

Reprint­ed with the author’s permission.