Today, the Supreme Court will consider a matter (Amnesty International v. Clapper) that could take away the National Security Agency’s ability to eavesdrop on Americans’ email and cellular communications without first obtaining a warrant.
Following the events that took place on 9/11, President George W. Bush ordered amendments (FISA Amendment Act) to the Foreign Intelligence Surveillance Act (FISA) — which was originally implemented in 1970 — that allowed the government to monitor the U.S. citizens corresponding with people outside of the country.
Last month, when the U.S. House voted to reauthorize the amendments, civil liberties activists issued harsh criticism of the move.
A legal briefing filed by the American Civil Liberties Union stated: “Under the FAA, the government can target anyone — human rights researchers, academics, attorneys, political activists, journalists — simply because they are foreigners outside the United States, and in the course of its surveillance it can collect Americans’ communications with those individuals.”
Aside from gripes over the potential 4th Amendment violations, civil liberties activists call the Justice Department’s justification for disallowing challenges to the FISA Amendments bunk. Justice contends that Americans cannot challenge the government’s eavesdropping because they likely do not know whether they have been targeted.
“This law clearly intrudes on constitutionally protected privacy and free speech rights, and the courts have not just the authority but the obligation to intervene,” said ACLU deputy legal director Jameel Jaffer, who will appear before the justices. “The Court of Appeals rightly held that our clients have the right to challenge the law, because the substantial risk that their communications will be monitored under it has compelled them to take costly measures to protect information that is sensitive. We are hopeful that the Supreme Court will agree with the Court of Appeals that the constitutionality of the government’s surveillance powers can and should be tested in court.”
Any time information about those targeted for surveillance under FAA has come up, Federal officials have simply stated that national security prohibits them from releasing the information. Furthermore, the government has tried to block courts from determining the Constitutionality of its actions by using its own refusal to provide information as the bulwark to prevent court hearings.
Bill Binney worked at the NSA from 1965 to 2001, and J. Kirk Wiebe worked at the NSA from 1975 to 2001. Last week, the two penned a whistle-blowing column in POLITICO outlining why the NSA has too much power to spy on U.S. citizens:
The NSA cannot be trusted with this power. No agency should be. Since 2001, the NSA has been willing time and again to throw the Constitution overboard and snoop on innocent Americans who are not suspected of any wrongdoing. Using shockingly fast machines called NARUS devices, the NSA can monitor virtually every single phone call, email and text that passes through the United States. The agency can make a mirror image of all those communications, then funnel those copies to massive data vaults. When it wants to, the NSA can then go through and compile a dossier on each and every one of us. That would be well and good if the agency followed the law and tracked only suspected terrorists. But it does not. Under the warrantless wiretapping program and now the FISA Amendments Act, the NSA conducts blanket, dragnet surveillance of Americans’ international communications, even when there is not even a hint that we’ve done something wrong.