The NSA and FISA

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).

7 thoughts on “The NSA and FISA

  1. The problem here is that the circumstances that the authors of the Fourth Amendment may have had in mind long ago may not bear any resemblance to the circumstances that the nation faces in the age of terrorism. Challenges to the constitutionality of the practices under FICA would have to address the core issue of relevance of the term unreasonable search and seizure to actions that do not actually search and seize but appear to monitor and collate.

  2. Thanks for a nice post. BTW I would challenge the other commenter to explain how the NSA accessing information that a private individual did not voluntarily cede to the NSA is not unreasonable search and seizure.

    1. I think that you are mistaken in treating the 4th amendment as establishing the principle that an individual must give consent to search and seizure for it to be reasonable. There is nothing in our constitutional history that leads to such an extreme interpretation. Our legal system depends upon the ability of the state, acting on our behalf and in an effort to protect our lives and property from criminal acts, under judicial supervision, to secure information concerning plans to commit crimes, or suspicions that a given person has committed a crime. There is nothing voluntary about this. Demanding consent is the same thing as upholding anarchy.

      1. *upholding individual rights*

        There, fixed it 🙂

        There is a tremendous difference between a subpoena for purposes of a specific crime and illegally securing information privately shared between users and telecommunication companies for millions of innocent citizens (practically every U.S. citizen) without the slightest probable cause of anything. If you cannot make that distinction, I suspect that you may be part of the problem.

        PS I’m not an anarchist myself, rather I’m a minarchist, more commonly (and more properly, I think) known as a libertarian. However I’ve had some fine conversations with anarchists, and on the whole anarcho-capitalists are quite lovely, peaceful people.

  3. The beauty of the principles written down in our constitution is that they are timeless. No matter the circumstances we have a right to resist unreasonable searches and seizures. The circumstances chance, but the principles remain. They are timeless. That’s what make them rights.

  4. You are confusing the principles of the declaration of independence with the political principles of the constitution. The latter is a political document establishing rules of governance, which can be treated as principles if circumstances remain essentially the same over time. When circumstances change we need new principles or ways of interpreting old ones differently. Otherwise the state and society stagnate and events are in control. I had much prefer a system where the people are in control and the government can be adaptive to changing conditions. This does not mean that we ought to ignore the constitution as some in Congress and the While House appear eager to do. Rather it means that we must treat the Constitution as a living document.

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