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FISA in the Supreme Court: Can American citizens bring suit?

Is it unconstitutional for the government to spy on Americans without a warrant? Right now the government can intercept American citizens’ emails, cell phone conversations, text messages, Google searches and bank records.

Is this constitutional? On Monday, the Supreme Court didn’t seek to answer this question. Instead, it heard arguments about whether or not this question even gets to be asked.


The National Security Agency (NSA) under President W. Bush after 9/11 completely disregarded the constitution and conducted warrantless domestic surveillance until the media revealed its obviously illegal breaches in 2006. This was a clear violation of the Foreign Intelligence Surveillance Act (FISA), which was enacted in the 1970s to keep Americans safe from unlawful eavesdropping.

Initially, our representatives in congress claimed to be outraged by the federal overreach. Two years later, however, a statute was passed — with the approval of then Senator Obama, no less — that retroactively approved Mr. Bush’s constitutionally questionable warrantless wiretapping and granted immunity to telephone companies that had cooperated with the government in the program.

With the 2008 amendments to the Foreign Intelligence Surveillance Act, the government now had broad and unprecedented power to monitor American communications without individualized warrants. The statute weakened judicial oversight of surveillance activities, lowered the government’s burden of proof for wiretapping suspects and completely eliminated traditional constitutional protections of the privacy of innocent citizens.

“Since 2001, the NSA has been willing time and again to throw the Constitution overboard and snoop on innocent Americans who are not suspected of any wrongdoing,” wrote Bill Binney, a whistleblower that worked at the NSA from 1965 to 2001, in a Politico editorial. “Using shockingly fast machines called NARUS devices, the NSA can monitor virtually every single phone call, email and text that passes through the United States.”

Then whenever it wants to, the NSA can go and make a dossier on every one of us, without any warrant whatsoever. “That would be well and good if the agency followed the law and tracked only suspected terrorists,” writes Bill Binney. Under “the FISA Amendments Act, the NSA conducts blanket, dragnet surveillance of Americans’ international communications, even when there is not even a hint that we’ve done something wrong.”

On Monday a lawsuit was brought against the 2008 FISA Amendments Act by the ACLU on behalf of human rights attorneys, journalists and human rights and media organizations. Donald Verrilli Jr., President Obama’s Solicitor General, asked the Supreme Court to dismiss the case on the basis that the plaintiffs couldn’t prove they had standing.

Obama’s Justice Department insists that Americans cannot bring suit against the NSA because no civilians can say with absolute certainty that their communications have been intercepted by secret surveillance.

Why can’t anybody actually find out if they’ve been a victim? The government won’t tell anybody — it’s classified. The Obama administration refuses to release any information about who has been spied upon or how many times — though Sen. Rand Paul says Americans have been the victim of warrantless surveillance “gazillions” of times.

Basically, Obama’s Justice Department is arguing that unless the plaintiffs can prove they will be monitored — which is impossible, since the list of who’s monitored is classified — they cannot sue.


This is the government’s argument that the Supreme Court considered on Monday. The court is split (like always) with four liberal judges in favor of letting the suit against the FISA Amendments Act reach the Supreme Court and four conservatives opposed with Kennedy expected to act as the deciding vote — who appears to be leaning toward siding with the liberal voting bloc.

You have most likely already been the victim of warrantless surveillance, your information is currently being accumulated in some database — that’s not the point at issue here. The issue is that Obama’s Justice Department is asserting that the American people don’t even have the right to bring this challenge to court.

The Obama administration isn’t saying it’s going to do anything with all of the information they’re gathering on you. All they’re saying is that they have the power to conduct warrantless surveillance against American citizens, and there’s nothing you can do about it.

Kevin Jensen is a senior English Major, he is voting for Gary Johnson for President. His columns appear Tuesdays in the Collegian. Kevin can be reached at or on twitter @kevinrjensen.

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