Last week we learned that the Foreign Intelligence Surveillance Court — which purportedly acts as a check on United States government surveillance power — has instead approved steady increases in surveillance. The FISA court has expanded the government's power to spy on us structurally (by approving surveillance categorically rather than on a case-by-case basis) and substantively (by approving supposed Fourth Amendment exceptions based on the government's assertion of a special need):
In one of the court’s most important decisions, the judges have expanded the use in terrorism cases of a legal principle known as the “special needs” doctrine and carved out an exception to the Fourth Amendment’s requirement of a warrant for searches and seizures, the officials said.
The special needs doctrine was originally established in 1989 by the Supreme Court in a ruling allowing the drug testing of railway workers, finding that a minimal intrusion on privacy was justified by the government’s need to combat an overriding public danger. Applying that concept more broadly, the FISA judges have ruled that the N.S.A.’s collection and examination of Americans’ communications data to track possible terrorists does not run afoul of the Fourth Amendment, the officials said.
Exactly how far has the FISA court gone in endorsing government spying, and what sorts of rationales has it used? The United States would prefer that you not know, and wants you to believe that you must not know, for the common good. Consider the United States' brief opposing the ACLU's request that the FISA Court release opinions discussing the scope of its own power under the PATRIOT Act:
if the Court were to find a First Amendment-based right of access to FISC opinions, the "greater risk of declassification and disclosure over Executive Branch objections" would have the potential to "chill the government's interactions with the Court." Id. at 496. This Court observed that such a "chilling effect could damage national security interests, if, for example, the government opted to forgo surveillance or search of legitimate targets in order to retain control of sensitive information that a FISA application would contain." Id. In addition, this Court found that in cases that are presented to the Court, "the free flow of information to the FISC that is needed for an ex parte proceeding to result in sound decisionmaking and effective oversight could also be threatened."
The United States government's requests to conduct surveillance beyond the traditionally understood confines of the Fourth Amendment depend on its assertion of special need. The United States government's requests to keep secret the targets of its spying, and how it is spying, and even the legal justifications for its spying, are all also premised on its assertion of special need. It appears the FISA court has been routinely accepting that assertion of special need.
There's a fundamental problem with that acceptance.
The United States government lies.
The people who represent the United States government lie.
In fact, the entire framework of secrecy and privilege is founded in lies by the United States. The state secret privilege — the half-century-old doctrine that holds that the government may ignore the rule of law by invocation of claims of secrecy — was premised on a lie by the United States. This shouldn't surprise us. The United States government, through its employees, lies about a great many things. The United States government lies to us — perhaps giving us the "least untruthful" story — when we question its use of power, and then lies to us about having lied to us. The United States government lies to us about war, its purpose, and its progress. The United States government lies to us about its treatment of detainees and its justifications for that treatment. Nor are the lies all about "security." The United States government is the sort of entity — made up of the sort of people — that will tells impoverished black men that it is treating them for "bad blood" when it is actually experimentally observing their untreated syphilis.
Yet America's modern surveillance state — and the secrecy that cloaks it — is premised at every level upon the United States government saying "trust us." But how is it even minimally rational to do so? Would the United States government or its advocates repose trust in anyone who lies as frequently and unabashedly as they do? How can you trust an organization with a proven record of lying — an organization so devoted to lying that it seeks to enact rules explicitly permitting it to lie to us?
Our approach to the creeping security state cannot be premised on credulous acceptance of the government's claims of "special need." Accepting that means accepting the word of a proven liar as a justification to restrict our freedom.
Last 5 posts by Ken White
- A Response To Marc: Institutions, Agendas, and the "Culture War" - January 13th, 2016
- Lawyering Is About Service, Not Self-Actualization - January 11th, 2016
- Lawsplainer: Was FAU Prof. James Tracy Fired in Violation of His First Amendment Rights? - January 7th, 2016
- Defy, Defy, Defy. - January 7th, 2016
- President Obama And The Rhetoric Of Rights - January 5th, 2016