WSJ: The NSA's Surveillance Is Unconstitutional

[Luminous Animal]

4. Glenn Greenwald Q&A with Falguni Sheth

Last edited Sat Jul 13, 2013, 12:41 PM - Edit history (1)

http://www.salon.com/2013/07/13/qa_with_glenn_greenwald_americans_reaction_surprising_and_gratifying/

Are these actions technically legal? What’s the implication that we should be walking away with? That there was “just” hand-in-hand cooperation, or that there was something illegal that’s being done?

Well, first of all, hovering over everything is always the Fourth Amendment, regardless of what Congress says is legal. The Fourth Amendment constrains what Congress and the government are permitted to do. One of the arguments from privacy activists and the ACLU and other groups has always been that the new FISA law, which was passed in 2008 with the support of all parties in Congress including President Obama, which was designed essentially to legalize the illegal Bush-Cheney wordless eavesdropping program, is unconstitutional. And there have been all sorts of lawsuits brought to argue that this law that Congress passed is unconstitutional, and yet no court has been able to rule on the merits of it, because the Obama administration has gone into court repeatedly and said two things: Number 1: All this is too secret to allow courts to rule on, and Number 2: Because we keep everything so secret, nobody can prove that they’ve been subjected to this spying, and therefore nobody has standing to contest the constitutionality of it. So there’s this huge argument out there, which is that all of this is illegal because it’s a violation of the Constitution, that the Obama DOJ has succeeded in preventing a judicial answer to.

Secondly, under the law, the U.S. government is free to intercept the communications of anybody they believe with 51 percent probability is not a U.S. citizen and is not on U.S. soil. So they’re free to go to any of these Internet companies or just simply take off the cables and fiber-optic wires that they have access to, whatever communications they want of anybody outside the United States who’s not a U.S. person, and oftentimes those people are speaking to American citizens. The NSA is free to invade those communications without having to go into a FISA court and get a specific warrant, which is why when President Obama said nobody’s listening to your calls without a warrant, he was simply not telling the truth. That was completely false and deceitful, what he said, because even under the law, the NSA is allowed to intercept communications with American citizens without getting a warrant. The only time they need a warrant is when they’re specifically targeting a U.S. person, an American citizen or somebody on U.S. soil. So it’s a scandal in that – not just that they’re violating the Constitution, but also what the law allows, because of the level of abuse that it entails.