Is the Secret FISA Court Constitutional?

Americans are just beginning to discover that a secret court has been quietly erasing their constitutional right to be free from unreasonable searches and seizures. They are also learning that this court is made up primarily of conservative  activists from the Republican Party who have no respect for the original intent of the Constitution’s framers.

With the blessing of this secret court, the National Security Agency (and well-paid companies like Booz Allen) have recorded billions of phone calls and e-mails belonging to nearly all Americans, with the intent of searching them later.

Under the Fourth Amendment, the NSA and its contractors are supposed to obtain specific judicial authority before seizing anyone’s communications. But, where NSA’s spying is concerned, no judicial warrants based on probable cause and authorizing targeted searches are required. Quite the contrary. The secret  “warrant” that Edward Snowden disclosed permits bulk seizures and subsequent searches without probable cause to believe that the targets of these computer searches are terrorists, criminals, or foreign agents. It is the very sort of general warrant that triggered the American Revolution and inspired the Fourth Amendment.

When the secret court was created in 1978, it was meant to authorize targeted searches, but sometime around 2004 it began, in secret, to issue general warrants for bulk seizures of communications. And it secretly coerced telephone companies and Internet servers to betray their customers’ privacy, without telling them.

According to Snowden, the agency’s analysts can use their super-computers to search anyone’s records within these vast caches at their own discretion. The government denies this, but then, it has a long history of lying about its intelligence activities.

They say we shouldn’t worry about these secret searches because the government never does anything wrong. But officials can use the results of these searches to punish their critics or intimidate employees and reporters from blowing the whistle on government waste, fraud, law-breaking, kidnapping, torture, cruel detentions, or the killing of citizens by drone in foreign lands. Embarrassing information can also be used to destroy the reputations of whistleblowers like Daniel Ellsberg and anti-Wall Street politicians like New York Governor Eliot Spitzer.

All this is perfectly legal, Obama’s lawyers say, because a secret court says it is. But the judicial power of the United States only extends to cases and controversies arising under the Constitution and laws of the United States. Are general warrants secretly issued in one-sided hearings the kind of “cases” that the framers had in mind? Did they intend to vest the judicial power in a secret court that only listens to the government and never gives the people any opportunity to challenge its decisions?

Our legal system presupposes that every “case” must be decided according to legal doctrines publicly laid down in similar cases in the past. That is what a system of legal precedent means. Nothing in the Constitution says that a secret court may lay down secret law, or make ad hoc decisions overriding constitutional rights, without letting the people to know their reasoning. That is not the system we inherited from the British, who abolished their last secret court — the infamous Star Chamber — in 1641.

National security courts like the Star Chamber are always a threat to freedom because, like war itself, they are based in the assumption that the end of security justifies almost any means. Our Constitution is based on the principle that means and ends must both be justifiable before the government may compromise our liberties, and that politicians and secret agents may not hide their wrongdoing behind layers of secrecy.

Unfortunately, our government, with the help of the secret FISA court, has strayed far from that principle. It’s time to abolish that court before it is asked to endorse even worse abominations, like issuing death warrants for the murder of citizens whom the administration wants to kill.

Christopher H. Pyle teaches constitutional law and civil liberties at Mount Holyoke College. He is the author of Military Surveillance of Civilian Politics and Getting Away with Torture. In 1970, he disclosed the U.S. military’s surveillance of civilian politics and worked as a consultant to three Congressional committees, including the Church Committee. 




More articles by:

Christopher H. Pyle teaches constitutional law and civil liberties at Mount Holyoke College. He is the author of Military Surveillance of Civilian Politics and Getting Away with Torture. He  is currently writing a book about money in politics.In 1970, he disclosed the U.S. military’s surveillance of civilian politics and worked as a consultant to three Congressional committees, including the Church Committee.   

Weekend Edition
March 16, 2018
Friday - Sunday
Michael Uhl
The Tip of the Iceberg: My Lai Fifty Years On
Bruce E. Levine
School Shootings: Who to Listen to Instead of Mainstream Shrinks
Mel Goodman
Caveat Emptor: MSNBC and CNN Use CIA Apologists for False Commentary
Paul Street
The Obama Presidency Gets Some Early High Historiography
Kathy Deacon
Me, My Parents and Red Scares Long Gone
Jeffrey St. Clair
Roaming Charges: Rexless Abandon
Andrew Levine
Good Enemies Are Hard To Find: Therefore Worry
Jim Kavanagh
What to Expect From a Trump / Kim Summit
Ron Jacobs
Trump and His Tariffs
Joshua Frank
Drenched in Crude: It’s an Oil Free For All, But That’s Not a New Thing
Gary Leupp
What If There Was No Collusion?
Matthew Stevenson
Why Vietnam Still Matters: Bernard Fall Dies on the Street Without Joy
Robert Fantina
Bad to Worse: Tillerson, Pompeo and Haspel
Brian Cloughley
Be Prepared, Iran, Because They Want to Destroy You
Richard Moser
What is Organizing?
Scott McLarty
Working Americans Need Independent Politics
Rohullah Naderi
American Gun Violence From an Afghan Perspective
Sharmini Peries - Michael Hudson
Why Trump’s Tariff Travesty Will Not Re-Industrialize the US
Ted Rall
Democrats Should Run on Impeachment
Robert Fisk
Will We Ever See Al Jazeera’s Investigation Into the Israel Lobby?
Kristine Mattis
Superunknown: Scientific Integrity Within the Academic and Media Industrial Complexes
John W. Whitehead
Say No to “Hardening” the Schools with Zero Tolerance Policies and Gun-Toting Cops
Edward Hunt
UN: US Attack On Syrian Civilians Violated International Law
Barbara Nimri Aziz
Iraq Outside History
Wilfred Burchett
Vietnam Will Win: The Long Hard Road
Victor Grossman
Germany: New Faces, Old Policies
Medea Benjamin - Nicolas J. S. Davies
The Iraq Death Toll 15 Years After the US Invasion
Binoy Kampmark
Amazon’s Initiative: Digital Assistants, Home Surveillance and Data
Chuck Collins
Business Leaders Agree: Inequality Hurts The Bottom Line
Jill Richardson
What We Talk About When We Talk About “Free Trade”
Eric Lerner – Jay Arena
A Spark to a Wider Fire: Movement Against Immigrant Detention in New Jersey
Negin Owliaei
Teachers Deserve a Raise: Here’s How to Fund It
Kollibri terre Sonnenblume
What to Do at the End of the World? Interview with Climate Crisis Activist, Kevin Hester
Kevin Proescholdt
Secretary of Interior Ryan Zinke Attacks America’s Wilderness
Franklin Lamb
Syrian War Crimes Tribunals Around the Corner
Beth Porter
Clean Energy is Calling. Will Your Phone Company Answer?
George Ochenski
Zinke on the Hot Seat Again and Again
Lance Olsen
Somebody’s Going to Extremes
Robert Koehler
Breaking the Ice
Pepe Escobar
The Myth of a Neo-Imperial China
Graham Peebles
Time for Political Change and Unity in Ethiopia
Terry Simons
10 American Myths “Refutiated”*
Thomas Knapp
Some Questions from the Edge of Immortality
Louis Proyect
The 2018 Socially Relevant Film Festival
David Yearsley
Keaton’s “The General” and the Pernicious Myths of the Heroic South