English: The United States Supreme Court, the highest court in the United States, in 2010. Top row (left to right): Associate Justice Sonia Sotomayor, Associate Justice Stephen G. Breyer, Associate Justice Samuel A. Alito, and Associate Justice Elena Kagan. Bottom row (left to right): Associate Justice Clarence Thomas, Associate Justice Antonin Scalia, Chief Justice John G. Roberts, Associate Justice Anthony Kennedy, and Associate Justice Ruth Bader Ginsburg. (Photo credit: Wikipedia)
Yochai Benkler | Guardian UK | Reader Supported News | September 22, 2013
Declassified Fisa rulings reveal a permissive approach to fourth amendment violations disturbingly at odds with supreme justices’
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 newly-released FISC opinion, the first to opine on the legality of the phone metadata collection program since the Snowden leaks brought the program to national attention, is based on two straightforward points.
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