In secret, Fisa court contradicted US supreme court on constitutional rights
On Tuesday, the Foreign Intelligence Surveillance Court (FISC) declassified an opinion in which it explained why the government's collection of records of all Americans' phone calls is constitutional, and that if there is a problem with the program, it is a matter of political judgment, not constitutional law. So, should Americans just keep calm and carry on phoning? Not really.
Instead, we should worry about a court that, lacking a real adversarial process to inform it, failed while taking its best shot at explaining its position to the public to address the most basic, widely-known counter-argument to its position. The opinion does not even mention last year's unanimous US supreme court decision on the fourth amendment and GPS tracking, a decision in which all three opinions include strong language that may render the NSA's phone records collection program unconstitutional. No court that had been briefed by both sides would have ignored the grave constitutional issues raised by the three opinions of Justices Scalia, Sotomayor, and Alito in United States v Jones. And no opinion that fails to consider these should calm anyone down.
The FISC court opinion that was just declassified relied entirely on the precedent of the 1979 case of Smith vs Maryland. This is the pen register decision that the Patriot Act relies on in its efforts to expand the powers of the NSA.
Last year in United States vs Jones SCOTUS rendered a decision which determined that use of a GPS device to track cars was subject to 4th amendment protections. The decision was unusual in terms of the way that the court split. The majority opinion protecting 4th amendment rights was written by Scalia who was joined by three other conservatives and Sotomayor. The minority dissent was written by Alito who was joined by the other three liberals. This unlikely combination makes it clear that the task of figuring out how to place complex technologies into the context of a 224 year old constitution is not a simple and cut and dried matter.
The real concern that this article raises is the complete failure of the FISC opinion to even address the Jones ruling. This presents a persuasive argument as to why these issues as they relate to the activities of the NSA cannot be settled in a one sided secret court.