The Secret Court: Is it Constitutional?
August 5, 2013
Americans are just beginning to discover that a secret court has been quietly erasing their constitutional right to be
free from unreasonable searches and seizures. They are also learning that this court is made up primarily of
conservative activists from the Republican Party who have no respect for the original intent of the Constitution’s
framers.
With the blessing of this secret court, the National Security Agency (and well-paid companies like Booz Allen) have
recorded billions of phone calls and e-mails belonging to nearly all Americans, with the intent of searching them later.
Under the Fourth Amendment, the NSA and its contractors are supposed to obtain specific judicial authority before
seizing anyone’s communications. But, where NSA’s spying is concerned, no judicial warrants based on probable cause and
authorizing targeted searches are required. Quite the contrary. The secret “warrant” that Edward Snowden disclosed
permits bulk seizures and subsequent searches without probable cause to believe that the targets of these computer
searches are terrorists, criminals, or foreign agents. It is the very sort of general warrant that triggered the
American Revolution and inspired the Fourth Amendment.
When the secret court was created in 1978, it was meant to authorize targeted searches, but sometime around 2004 it
began, in secret, to issue general warrants for bulk seizures of communications. And it secretly coerced telephone
companies and Internet servers to betray their customers’ privacy, without telling them.
According to Snowden, the agency’s analysts can use their super-computers to search anyone’s records within these vast
caches at their own discretion. The government denies this, but then, it has a long history of lying about its
intelligence activities.
They say we shouldn’t worry about these secret searches because the government never does anything wrong. But officials
can use the results of these searches to punish their critics or intimidate employees and reporters from blowing the
whistle on government waste, fraud, law-breaking, kidnapping, torture, cruel detentions, or the killing of citizens by
drone in foreign lands. Embarrassing information can also be used to destroy the reputations of whistleblowers like
Daniel Ellsberg and anti-Wall Street politicians like New York Governor Eliot Spitzer.
All this is perfectly legal, Obama’s lawyers say, because a secret court says it is. But the judicial power of the
United States only extends to cases and controversies arising under the Constitution and laws of the United States. Are
general warrants secretly issued in one-sided hearings the kind of “cases” that the framers had in mind? Did they intend
to vest the judicial power in a secret court that only listens to the government and never gives the people any
opportunity to challenge its decisions?
Our legal system presupposes that every “case” must be decided according to legal doctrines publicly laid down in
similar cases in the past. That is what a system of legal precedent means. Nothing in the Constitution says that a
secret court may lay down secret law, or make ad hoc decisions overriding constitutional rights, without letting the
people to know their reasoning. That is not the system we inherited from the British, who abolished their last secret
court -- the infamous Star Chamber -- in 1641.
National security courts like the Star Chamber are always a threat to freedom because, like war itself, they are based
in the assumption that the end of security justifies almost any means. Our Constitution is based on the principle that
means and ends must both be justifiable before the government may compromise our liberties, and that politicians and
secret agents may not hide their wrongdoing behind layers of secrecy.
Unfortunately, our government, with the help of the secret FISA court, has strayed far from that principle. It’s time to
abolish that court before it is asked to endorse even worse abominations, like issuing death warrants for the murder of
citizens whom the administration wants to kill.
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Professor Christopher H. Pyle teaches constitutional law at Mount Holyoke College in South Hadley, Massachusetts. He is
the author of several books, including Military Surveillance of Civilian Politics and Getting Away with Torture. In 1970
he disclosed the Army’s massive surveillance of civilian politics and worked for three congressional committees,
including Senator Church’s intelligence committee, to end it.