#Snowden: Last Word For Today, and It's For You, DU...

[Maedhros]

52. If there's room under the bus for David Sirota

I'll post a link to an article today on Salon discussing exactly why the surveillance program is problematic:

link:http://www.salon.com/2013/06/17/were_all_terrorist_suspects_now/

Thus, when the NSA is successful in getting such a warrant from the FISA court, both the agency and the court are implicitly asserting that such a warrant meets the constitution’s Fourth Amendment requirement that warrants are only issued when there is “probable cause.”

That requirement, of course, is not vague. Unlike many other amendments that deliberately left wiggle room for ongoing interpretation, the Constitution’s Fourth Amendment is inarguably set in stone in declaring that in the United States “no warrants shall issue but upon probable cause.” The inflexibility of that language was no accident – colonists’ backlash to the British monarchy’s use of general no-cause warrants was one of the main factors sparking the American Revolution. Consequently, as the Electronic Frontier Foundation shows, the founders sculpted the constitution to explicitly outlaw those boundless, no-cause general warrants.

Sirota quotes Rep. Grayson from his congressional floor speech:

According to their published statements, including a statement by their Director last Saturday, they maintain that it’s legal because of a single Supreme Court case decided in 1979 that said that the government, specifically local police authorities, could acquire the phone records of one person once…Because the Supreme Court says that, at that point, the government could acquire the phone records of one person once, the NSA is maintaining that its entire program is legal and that it can acquire the phone records of everyone, everywhere, forever. That is a farce.

The heart of the matter:

Put another way, NSA defenders’ argument that the FISA court’s mass-surveillance warrants comply with the Fourth Amendment boils down to this: no matter who we are or what we do, the government has probable cause to automatically consider all of us suspects all the time.

Is such a perpetual population-wide presumption of criminality legitimate? Does the executive branch really have “ongoing” probable cause to view the entire citizenry as potential criminals worthy of judiciary-sanctioned surveillance? These are some of the huge questions that the Supreme Court has used technicalities to try to avoid.

Similarly, they are questions that Obama officials don’t want to have to answer, likely because they (in part) don’t want to have to argue in public that yes, they believe all Americans should be considered suspects and that therefore the government has probable cause for surveillance. They don’t want to publicly make such an argument because they know it would almost certainly be politically unpopular. This may be one of the reasons the administration has fought to keep its legal rationale for such surveillance secret.