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Posts Tagged ‘Foreign Intelligence Surveillance Court’

The Bill of Temporary Privileges

Posted by M. C. on September 23, 2022

By Andrew P. Napolitano

Today, if you call your cousin in London, the Foreign Intelligence Surveillance Court can authorize the NSA to spy on you. And if you then call your sister-in-law in Kansas, FISC can allow the NSA to spy on her and on the folks she calls and the folks they call.

Earlier in the summer, the Director of National Intelligence, the data-gathering and data-concealing arm of the American intelligence community masquerading as the head of it, revealed that in 2021, the FBI engaged in 3.4 million warrantless electronic searches of Americans. This is a direct and profound violation of the right to privacy in “persons, houses, papers, and effects” guaranteed by the Fourth Amendment.

For the past 60 years, the Supreme Court has characterized electronic surveillance as a search that can only be conducted pursuant to a warrant issued by a judge based on probable cause of crime, which itself must be presented under oath to the judge. The warrant must specifically describe the place to be searched and the person or thing to be seized.

By failing to comply with these constitutional requirements, the FBI violated the natural and constitutionally protected right to be left alone of millions of Americans.

Yet, all of this was perfectly lawful. How can government behavior be both lawful and unconstitutional at the same time and in the same respect?

Here is the backstory.

The Fourth Amendment was written in 1791 while memories of British soldiers searching colonial homes were still prevalent. The British used general warrants to justify their violation of colonists’ privacy. A general warrant was not based on probable cause of crime. It was generated whenever the British government persuaded a secret court in London that it needed something from foreign persons, the colonists. The British government did not even need to identify what it needed.

General warrants authorized the bearer to search wherever he pleased and to seize whatever he found. The Fourth Amendment was written expressly to outlaw general warrants and warrantless searches.

After President Richard Nixon used the FBI and the CIA to spy on his political opponents, Congress enacted the Foreign Intelligence Surveillance Act of 1978, which prohibited warrantless domestic surveillance. Since the Fourth Amendment did so already, the prohibition was superfluous.

It was also toothless, as the new law set up a secret court — the FISA court — which issued surveillance warrants based not on probable cause of crime as the Fourth Amendment requires, but on probable cause of communicating with a foreign person. And the court, over time, kept modifying its own rules to make it easier for the National Security Agency –America’s 60,000 domestic spies — to spy on Americans.

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