There Goes the 4th Amendment, Crushed by FISA

Dear Mr. President,

There goes the 4^th Amendment. Again. The Senate just passed a 5 year extension of the Foreign Intelligence and Surveillance Act (FISA) which was set to expire next week. They voted down amendments to require oversight and justification for wiretapping and the collection of electronic information which Senator Feinstein—that rightwing warhawk who labels herself a Democrat only because she couldn’t get elected as a Republican—said the amendments were not necessary. According to this morning’s New York Times, you strongly support the FISA extension and are expected to sign it within the next few days—maybe like the midnight signing of last year’s 2012 NDAA on New Year’s Eve when everyone was out partying and not paying attention. As a constitutional law professor, you’ve probably got the 4^th Amendment memorized, you know, the one that says “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.” Instead, FISA is all about secrecy and intercepting communications—phone calls, emails, internet activity—without anyone knowing. Ostensibly directed at foreigners—“suspected terrorists”—it’s clear that Americans are also being monitored but the intelligence agencies refuse to tell Congress how many or who or under what circumstances. “Beyond the capacity of his office,” the NSA’s Inspector General told Congress. But if they have the capability of capturing and mining all this information, surely they can count. “An open and democratic society such as ours should not be governed by secret laws”: Sen. Jeff Merkley said, and yet, secret laws are the hallmark of your administration. Sen. Ron Wyden compared writs under FISA to the “general warrants that so upset the colonists” more than 200 years ago and Sen. Richard Durbin, the No. 2 Senate Democrat, said the law does not have adequate checks and balances. All to no avail. It passed the Senate 73-23, eliminating yet another constitutional guarantee. And all because the Senate was called back into a non-urgent urgent session to deal with the Fiscal Cliff but is unable to, so they passed this unconstitutional law instead. It seems the only time America is really safe is when Congress is not in session and can’t do more mischief.