The NSA's dragnet surveillance program violates the Fourth Amendment and more.

The following is an excerpt from VIRGINIA SHUBERT, NOHA ARAFA, v. the NSA.
 
Dragnet Violates the Fourth Amendment:

“The security of one’s privacy against arbitrary intrusion by the police–which is at the core of the Fourth Amendment–is basic to a free society.” Berger v. New York, 388 U.S. 41, 53 (1967) (citation omitted). A Dragnet sweeping hundreds of millions of private phone calls and emails of millions of innocent Americans, without a warrant or probable cause, is the very opposite of what the Fourth Amendment requires.

First, the Dragnet program violates the Fourth Amendment’s requirement the government to obtain a warrant before intercepting the content of a telephone call. See Katz v. United States, 389 U.S. 347, 352 (1967); Berger, 388 U.S. at 51. Wiretapping “by its very nature. . . involves an intrusion on privacy that is broad in scope,” Berger, 388 U.S. at 56, and thus bears a dangerous “similarity to the general warrants out of which our Revolution sprang,” id. At 64 (Douglas, J., concurring). Warrantless searches are presumptively unreasonable, absent “a few specifically established and well-delineated exceptions,” not present here. Katz, 389 U.S. At 357; see also United States v. Karo, 468 U.S. 705, 717 (1984).

The Supreme Court has never recognized an exception to the warrant requirement for domestic intelligence surveillance. To the contrary, in United States v. United States District Court for the Eastern District of Michigan, 407 U.S. 297 (1972) (“Keith”), the Supreme Court rejected such an exception, holding that the Fourth Amendment’s promise of privacy “cannot properly be guaranteed if security surveillance may be conducted solely within the discretion of the Executive Branch.” 407 U.S. at 316-17. In Keith, the Court rejected multiple arguments for a warrantless eavesdropping intelligence program.

Second, the Dragnet violates the Fourth Amendment’s proscription against general searches. The use of “general warrants” was “a motivating factor behind the Declaration of Independence . . . . The Fourth Amendment’s requirement that a warrant ‘particularly describe the place to be searched, and the persons or things to be seized,’ repudiated these general warrants and makes general searches impossible.” Berger, 388 U.S. at 58 (citing the Fourth Amendment). The Dragnet is even worse than a general warrant, because it is a general search without a warrant. Rather than target any “particular place to be searched” or “persons or things to be seized,” U.S. Const. amend. IV, it indiscriminately targets every call and every email of every person. No such general search has ever been permitted in any Fourth Amendment case.

Third, the Dragnet violates the Fourth Amendment because the indiscriminate eavesdropping of millions of Americans is “unreasonable” and not based on “probable cause.” Id. The Dragnet sweeps millions of Americans without probable cause to believe either that they committed a crime, or even that they are an “agent of a foreign power.” 50 U.S.C. § 1805(a)(3). Wiretapping without probable cause violates the Fourth Amendment. See, e.g., United States v. White, 401 U.S. 745, 758 (1971); Berger, 388 U.S. at 58. Defendants do not challenge the sufficiency of plaintiffs’ Fourth Amendment claim because they cannot. As alleged, defendants violated the Fourth Amendment. 

The Dragnet is a Crime and Violates FISA:

The Spying Program undisputedly involves “electronic surveillance” of Americans. See 50 U.S.C. § 1801(f) (defining the term). Any person who “engages in electronic surveillance under color of law except as authorized by statute” and without “a search warrant or court order” is guilty of a federal crime, “punishable by a fine of not more than $10,000 or imprisonment for not more than five years, or both.” 50 U.S.C. § 1809. In addition, any “aggrieved person,” defined as any person “whose communications or activities were subject to electronic surveillance,” 50 U.S.C. § 1801(k)), other than a foreign power or an agent of a foreign power, “shall have a cause of action against any person” who violated 50 U.S.C. § 1809. See 50 U.S.C. § 1810. As alleged in the SAC, defendants “engaged in electronic surveillance” of plaintiffs without “a search warrant or court order,” and therefore violated FISA. 50 U.S.C. §§1809(b), 1810.

Another core separation of powers principle directly applicable here is “the deeply rooted and ancient opposition in this country to the extension of military control over civilians.” Reid, 354 U.S. at 33; see id. at 23-24 (“The Founders envisioned the army as a necessary institution, but one dangerous to liberty if not confined within its essential bounds.”); Laird v. Tatum, 408 U.S. 1, 15 (1972) (recognizing “a traditional and strong resistance of Americans to any military intrusion into civilian affairs” that “has deep roots in our history”) (emphasis added); Youngstown Sheet, 343 U.S. at 632 (Douglas, J., concurring) (“[O]ur history and tradition rebel at the thought that the grant of military power carries with it authority over civilian affairs.”); Toth v. Quarles, 350 U.S. 11, 13 (1955) (“[A]ssertion of military authority over civilians cannot rest on the President’s power as commander-in-chief, or on any theory of martial law.”). As the Supreme Court wrote in 1957, “[t]he country ha[d] remained true to that faith,” a faith “firmly embodied in the Constitution,” for “almost one hundred seventy years.” Reid, 354 U.S. At 40.

This core constitutional principle is very much at stake here, where the President seeks to justify a spying program upon the American people by the intelligence arm of the Department of Defense, based upon a war against a foreign terrorist organization. Youngstown Sheet, 343 U.S. at 642 (Jackson, J., concurring) (explicating dangers of permitting use of President’s foreign affairs power to “enlarge his mastery over the internal affairs of the country”).

Under the defendants logic the very rule they want this Court to uphold in this case—an Article III court could not declare the program unconstitutional, enjoin it, or even permit its revelation. The secrecy surrounding the illegal program becomes de facto immunity for the program itself.

To state the Government’s position is to recognize its dangerous absurdity. It is a legal regime of absolute, unchecked Executive power. It simply cannot be that the President can, through the state secrets privilege, immunize any and all illegal conduct with national security implications. In brief after brief, oral argument after argument, for the last five years, plaintiffs have challenged the Government to articulate some constitutional limitation on the state secrets privilege. In each case, the Government has failed. In defendants’ view, if revealing a program might compromise national security, no Article III court can enjoin the program, period. It does not matter if the program is illegal, criminal, or unconstitutional. It does not matter whether or not it violates the rights of 3, 300, or 300 million Americans.

If any case placed the conflict between this limited common law doctrine and the Constitution into stark relief, it is this one. Had the President violated the Constitution openly, announcing that the NSA indiscriminately intercepts the calls/emails of millions of Americans, an Article III court would enjoin the program within a day. That the President violates the Constitution secretly does not change the constitutional calculus.

The President offers no limiting principle for this breathtaking extension of the state secrets privilege. Any unconstitutional conduct, any violation of law–no matter how many people it affects, no matter how violative of fundamental rights–cannot be stopped, or even revealed, if its revelation might harm national security. Such an awesome power “either has no beginning or it has no end. If it exists, it need submit to no legal restraint. . . . . [It may not] plunge us straightway into dictatorship, but it is at least a step in that direction.” Youngstown Sheet, 343 U.S. At 653 (Jackson, J., concurring) .
http://www.courthousenews.com/2012/11/07/nsa.pdf
http://abcnews.go.com/Politics/OTUS/supreme-court-hear-electronic-surveillance-case/story?id=17564982
https://www.eff.org/nsa-spying 
http://www.prisonplanet.com/mass-government-surveillance-dragnet-goes-into-overdrive.html