Is the FISA Court Constitutional?

By

 M. Richard Maxson

      As with the old Soviet Union the United States has a secret judicial body that dispenses it's own form of justice without oversight from any citizen or legislator. It has been given sweeping authority to do as it chooses in issuing warrants for surveilance on everyone clandestinely using national security as it's justification. The thought process that invented this court and continues it's operations to this day and a blatant violation of the Fourth Amendment. The Fourth Amendment requires judicially issued warrants for all government searches and seizures, and it mandates that those search warrants be based on probable cause of wrongdoing on the part of the person whom the government wishes to surveil and that the warrants themselves specifically describe the place to be searched or the person or thing to be seized.

      In the pre-Revolutionary era, British courts in London secretly issued general warrants to British government agents in America. The warrants were not based on any

probable cause of crime or individual articulable suspicion; they did not name the person or thing to

be seized or identify the place to be searched. They authorized agents to search where they wished and seize what they found. The use of general warrants was so offensive to our Colonial ancestors that it whipped up more serious opposition to British rule and support for the revolutionaries than the "no taxation without representation" argument did. So when it came time for Americans to write the Constitution, they prohibited general warrants in the Fourth Amendment, the whole purpose of which was to guarantee the right to be left alone by forcing the government to focus on bad guys and prohibit it from engaging in fishing expeditions.

      If it weren't for Edward Snowden the average American citizen would have never known that there is a special court of federal judges which meets in secret to authorize the government to gather and review millions and millions of phone and internet records. This court, called the Foreign Intelligence Surveillance Court (FISA court), allows government lawyers to come before them in secret, with no representatives of the public or press or defense counsel allowed, to argue unopposed for more and more surveillance. This is the court which, in just one of its thousands of rulings that the public was not aware of, authorized the handing over of all call data created by Verizon within the US and between the US and abroad to the Federal Bureau of Investigation.

     The powers that be are given carde blanche to do what ever they want out of view as nearly all of the thousands of decisions of the FISA court have been classified as top secret. The public is not allowed to know what the decisions are, but public records do show how many times the government asked for surveillance authorization and how many times they were denied. These show that in the last three years, the government asked for authorization nearly 5000 times and they were never denied and in its entire history, the FISA court has denied just 11 of 34,000 requests for surveillance.

      FISA was written in the aftermath of the Watergate scandal, which involved illegal domestic spying. The purpose of FISA was to insert the judiciary between the NSA and its targets so as to ensure that there would be a consistent legal basis for the spying. What was that basis? The Supreme Court has long characterized domestic spying as surveillance, and it has characterized surveillance as either a “search” or a “seizure” of communications.

      What the NSA does not tell the FISA court is that its requests for approvals are a sham. That’s because the NSA relies on vague language in a 35-year-old executive order, known as EO 12333, as authority to conduct mass surveillance. The targets today are not just ordinary Americans, it is surveillance of everyone and that includes justices on the Supreme Court, military brass in the Pentagon, agents in the FBI, local police in cities and towns, and the man in the Oval Office. It captures the content of every telephone conversation, as well as every keystroke on every computer and all fiber-optic data generated everywhere within, coming to and going from the United States. This is not only profoundly unlawful but also profoundly deceptive. It is unlawful because it violates the Fourth Amendment. It is deceptive because Congress and the courts and the American people, perhaps even the president, think that the FISA court has been serving as a buffer for the voracious appetite of the NSA.

      In our misguided efforts to keep the country safe, we

have neglected to keep it free. We have enabled a deep state to become powerful enough to control a powerful president. We have placed so much data and so much power in the hands of unelected, unaccountable, opaque spies that they can use it as they see fit even to the point of committing federal felonies. Some members of the deep state have boasted that they can manipulate and thus control the president of the United States by selectively revealing and concealing what they know about anyone, including the president himself.

      This is a perilous state of affairs, brought about by the maniacal passion for surveillance spawned under George W. Bush and perfected under Barack Obama -- all with utter indifference to the constitutional violations and permanent destruction of personal liberties. This is not the government the Founders gave us. It is one far more dangerous to human freedom than perhaps anything that we have ever faced as a Republic.