Next Monday at the Supreme Court: Trying to Stop the NSA’s Unconstitutional Overreach

The next time you send an email or make a phone call to a friend outside the country, consider this: the National Security Agency could be making a copy of your communication and storing it. What about the Fourth Amendment? According to the government, not only is this practice constitutional, but ordinary federal courts should not even be allowed to rule on it.

On October 29th, the ACLU will be at the Supreme Court to argue this very issue in our lawsuit challenging the NSA’s warrantless wiretapping program, which Congress authorized in the FISA Amendments Act of 2008. This unprecedented law allows the NSA to engage in dragnet surveillance of Americans’ international emails and phone calls.

Today in an op-ed in Politico, two whistleblowers who worked at the NSA for decades, Bill Binney and J. Kirk Wiebe, tell how the agency got so far off course, and how they tried to stop what was happening:

Our touchstone was the Fourth Amendment’s protections against unreasonable searches and seizures and its guarantee that warrants could only be issued with probable cause and against specific targets. Whenever we suspected that an American abroad or someone inside the United States might be involved in terrorism or espionage, we carefully gathered the evidence and presented it to the Foreign Intelligence Surveillance Court, which meets in secret to protect classified information. Only if that court gave us permission would we monitor an American’s communications.

Then came the horrific crimes of September 11, and we lost our moorings. Shortly after that terrible day, President Bush authorized the NSA to wiretap Americans’ international communications without any warrant, suspicion of wrongdoing, or court oversight at all. The Bush administration managed to keep this secret for years, but inside the NSA, we knew what was happening. Together with large numbers of our colleagues, we objected to the abandonment of constitutional protections. We were told to mind our own business. But this is exactly the kind of intrusion into our private lives that the Founding Fathers wanted to prevent. We resigned in protest.

The plaintiffs in our lawsuit, Amnesty v. Clapper, include human rights, media, and legal organizations. The government claims that the group shouldn’t be able to sue without first showing that their communications have been or will be monitored under the statute – but in a Kafkaesque move, the government refuses to reveal who has and hasn’t been spied on.

Binney and Wiebe conclude by explaining why the courts’ ability to review the law is so important.

The framers established our independent courts to be the final bulwark of liberty. They recognized that the political branches – Congress and the president – cannot be relied on alone to protect our rights, particularly in times of crisis. That is as true today as it has ever been. Threats to national security cannot be an excuse to throw out the very system that has been our nation’s strength for over 200 years. We cannot allow the rhetoric of fear to justify abandoning our Constitution.

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