This Supreme Court Might Let FISA Stand

The ACLU, joined by numerous co-plaintiffs, has filed a challenge to the FISA law.

Thh ACLU brief asserts that the FISA is unconstitutional, allowing "the executive branch sweeping and virtually unregulated authority to monitor the international communications - and in some cases the purely domestic communications - of law-abiding U.S. citizens and residents. The amended law (the "challenged law") eviscerates the "[c]lear legal standards and effective oversight and controls" that the Senate Church Committee concluded in 1978 were necessary to ensure that government surveillance did "not itself undermine the democratic system it [was] intended to protect." [Amnesty International USA et al v. John McConnell (U.S. Director of National Intelligence) et al, complaint for a Declaratatory and Injunctive Relief]

The Bush-Cheney acceleration of warrantless surveillance and presidential claims of executive power to spy on American citizens under the umbrella of national security and the inherent power of the presidency has modern U.S. precedent—the Nixon administration.

But 1972 saw a unanimous Supreme Court shoot down Nixon’s attempt to legalize his monarchical claims of his presidency through warrantless wiretapping in UNITED STATES v. UNITED STATES DISTRICT COURT, 407 U.S. 297 (1972).

Justice Lewis Powell, writing for a unanimous Court, denounced the Nixon administration’s warrantless wiretapping program not just on Fourth Amendment grounds, but as a betrayal of the sovereign rights of citizens in a democracy to criticize their own government.

History abundantly documents the tendency of Government - however benevolent and benign its motives - to view with suspicion those who most fervently dispute its policies. Fourth Amendment protections become the more necessary when the targets of official surveillance may be those suspected of unorthodoxy in their political beliefs. The danger to political dissent is acute where the Government attempts to act under so vague a concept as the power to protect ‘domestic security.’ Given the difficulty of defining the domestic security interest, the danger of abuse in acting to protect that interest becomes apparent. ... The price of lawful public dissent must not be a dread of subjection to an unchecked surveillance power. Nor must the fear of unauthorized official eavesdropping deter vigorous citizen dissent and discussion of Government action in private conversation. For private dissent, no less than open public discourse, is essential to our free society.
- Justice Lewis Powell (UNITED STATES v. UNITED STATES DISTRICT COURT, 407 U.S. 297 (1972))

One wonders if today's Supreme Court will vote to protect Fourth Amendment freedoms as did its predecessor. We live in different, worse, times than we did during Nixon.

- Part of the above copy has been previously published. -