“The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.” – The Fourth Amendment to the Constitution of the United StatesThe Supreme Court on Tuesday turned back a challenge to a federal law that broadened the government’s power to monitor the emails and telephone conversations of American citizens without judicial approval or review. The 5-4 decision, divided along ideological lines, means courts may never be able to rule whether such surveillance violates the Constitution.
The Fourth Amendment to the U.S. Constitution guarantees citizens the right to be free from unreasonable search and seizure. When that right has been violated, we must be able to challenge the intrusion. Government search and seizure, including wiretaps, monitoring of emails and other forms of electronic surveillance, must never be beyond judicial review.
But now much of it is, thanks to the Foreign Intelligence Surveillance Act, originally passed in 1978 but heavily amended in 2008.
The Foreign Intelligence Surveillance Act, or FISA, was passed in response to revelations about widespread abuse of government wiretaps, and to growing concerns on the part of the Supreme Court over eavesdropping practices. The law governs the surveillance of people in the United States for the purpose of collecting intelligence related to foreign powers. A secret court, known as the Foreign Intelligence Surveillance Court, was created to hear requests for such warrants. Safeguards were put in place to ensure that investigators pursuing criminal matters did not obtain warrants under FISA that they could not get from an ordinary judge.
After the attacks of Sept. 11, 2001, the Bush administration was highly critical of the FISA restrictions. Portions of the Patriot Act, rushed through Congress just weeks later, expanded FISA’s reach to cover terrorism suspects as well as agents of foreign countries. But when President Bush ordered an expanded program of surveillance by the National Security Agency, he decided to bypass the FISA process entirely.
In 2008, Congress overhauled FISA to expand the government’s power to conduct surveillance without warrants. The FISA Amendments Act of 2008 brought federal statutes into closer alignment with what the Bush administration had been doing all along in secret. The legislation legalized certain aspects of the program, including bypassing the need for warrants and other means of judicial review, as well as the requirement for the government to be answerable in court for actions taken in the pursuit of domestic intelligence.
In September 2012, the House voted, 301 to 118, to extend the FISA Amendments Act for another five years. Republicans overwhelmingly supported the bill, 227 to 7, while Democrats were split, with 74 voting for it and 111 voting against it. The Senate passed the extension in December, by a vote of 73 to 23, after rejecting attempts by both parties to add protections for privacy and civil liberties.
Now the Supreme Court has turned back a challenge to the law by a group of lawyers, journalists and human rights activists. In doing their jobs, argued the plaintiffs, many of them have contact with individuals whom the government might consider suspicious for any number of reasons. The group claimed that this makes it likely that their communications are being monitored. The justices ruled that, without proof that the government had actually monitored their communications, they lacked the legal standing to sue.
Of course, only government officials know whom they are monitoring, and as long as they never have to disclose that information, not even to a judge, no one will ever have the standing to challenge the law’s constitutionality.
Where is the outrage? The Tea Party and the talking heads on the Fox News Channel who have set themselves up as defenders of our Constitution have been conspicuously silent on the issue. Of course they have: imagined threats from the left have always mattered more to these “champions of liberty” than actual threats from the right. But Democrats have been weak on taking on this challenge as well.
Congress must amend FISA to ensure there is a realistic way for citizens to challenge this law, as they can others, in court. Rights are meaningless if they cannot be enforced or defended.