Last week, the Untied States Supreme Court heard arguments in Clapper v. Amnesty International, in which the court will determine if those challenging the Federal Intelligence Surveillance Act have the ability to do so in US federal courts. FISA allows for the electronic surveillance of international communications including both phone calls and e-mails. Unfortunately, this decision is not going to augment or get rid of FISA. It is the initial step to see if the law can be challenged at all. FISA was passed in 1978 as a law that required the government to obtain a warrant from a specially assigned court to partake in the electronic surveillance of communicating from or to the Untied States.
In a recent article, "House votes to extend FISA for five years, inviting more unconstitutional surveillance", BORDC communications specialist Samantha A. Peetros explains how FISA began and how it has transformed since Congress' re-authorization of the 2008 FISA amendments:
"When originally passed, FISA was meant to curtail the federal government’s surveillance practices. Over the years, provisions for dragnet surveillance have been expanded, particularly since 2002. During the Bush administration, the National Security Agency began a warrantless wiretapping scheme hatched in secret, and in such clear violation of FISA that Attorney General John Ashcroft refused to authorize it and Justice Department officials threatened to resign en masse."
In their decision, the Court will only address whether challengers have the right to oppose the law, not the constitutionality of the law itself since this was the issue presented on appeal in Clapper. Professor Sudha Setty of the Western New England University School of Law who specializes in comparative national security recently addressed the issue, saying:
"In the Clapper case, the Obama administration won’t disclose whether the plaintiffs were actually under surveillance, but will paradoxically argue before the Court that the plaintiffs don’t deserve a day in court because they can’t prove (due to government secrecy) that they, in particular, were actually monitored."
This notion is certainly most concerning: there is no way to know if you are being monitored. Supporters of FISA claim that in an age of terrorism, the government needs this excessive power. However, the real problem is the fact that the law has not functioning checks and balances. Shahid Buttar, Executive Director of BORDC explained that this Congressional failure spans across party lines, saying:
"We know that congressional Democrats–including then Senator Obama–joined their Republican colleagues in 2008 to approve FISA, even while both parties paid lip service about defending constitutional values in Washington. Despite the partisan rancor apparent on many issues, Congress marches in lockstep on national security, elevating government power well beyond constitutional limits."
With the House re-authorization this fall, and no Senate vote in sight, it seems that it is left to the Supreme Court to utilize the necessary checks and balances to allow Americans the ability to challenge overbroad and unconstitutional surveillance policies in the US.
The Electronic Privacy Information Center, along with partnered organizations including BORDC, filed a "friend of the court" brief, or amicus curaie, for consideration in the Clapper case, which can be viewed online for more information on how FISA threatens your security and infringes on civil liberties.