There was an interview with Glen Greenwald this weekend at Salon that should be of great interest to anyone following the Snowden revelations and the NSA’s surveillance activities. Here is a quick excerpt.
…hovering over everything is always the Fourth Amendment, regardless of what Congress says is legal. The Fourth Amendment constrains what Congress and the government are permitted to do. One of the arguments from privacy activists and the ACLU and other groups has always been that the new FISA law, which was passed in 2008 with the support of all parties in Congress including President Obama, which was designed essentially to legalize the illegal Bush-Cheney warrantless eavesdropping program, is unconstitutional. And there have been all sorts of lawsuits brought to argue that this law that Congress passed is unconstitutional, and yet no court has been able to rule on the merits of it, because the Obama administration has gone into court repeatedly and said two things: Number 1: All this is too secret to allow courts to rule on, and Number 2: Because we keep everything so secret, nobody can prove that they’ve been subjected to this spying, and therefore nobody has standing to contest the constitutionality of it. So there’s this huge argument out there, which is that all of this is illegal because it’s a violation of the Constitution, that the Obama DOJ has succeeded in preventing a judicial answer to.
Of course, we should not be concerned about the surveillance regime because the FISA (Foreign Intelligence Surveillance Act) court protects our rights. As the new edition of the Economist notes:
according to congressional reports, between 2001 and 2012 FISA judges approved 20,909 requests to monitor individuals or search properties, turning down only ten.
The Economist cites an interesting article written by Eric Lichtblau in the New York Times. According to Lichtblau, the FISA court “has created a secret body of law” and “has taken on a much more expansive role by regularly assessing broad constitutional questions and establishing important judicial precedents, with almost no public scrutiny.” In sum, “it has quietly become almost a parallel Supreme Court, serving as the ultimate arbiter on surveillance issues and delivering opinions that will most likely shape intelligence practices for years to come, the officials said.”
Unfortunately, the NSA revelations have not gotten much traction in the popular press Attention has focused not on policy but on Snowden (Traitor? Whistle blower?) and his whereabouts. One can guess that even this coverage will be displaced by some far some far more important issue (e.g., the royal birth).