Does the Government Actually Understand the 4th Amendment?
Kafka and Heller are laughing hysterically in their graves because reality is now more absurd than anything that they ever wrote!
Grayson is basically arguing that the kind of boundless general warrant the NSA is using to justify its mass “ongoing” surveillance cannot possibly comply with the Fourth Amendment’s mandate that warrants only be issued when the government has probable cause.
In our current understanding of “probable cause” - whereby it applies only to warrants against specific individuals suspected of criminal activity - the Florida congressman is undoubtedly right (as is the ACLU, which has filed a federal lawsuit in the aftermath of the Snowden disclosures). However, that current understanding is really what’s at issue here. That’s because in claiming the FISA court’s mass-surveillance warrants comply with the Fourth Amendment, the NSA, the Obama administration and Obama partisans are by definition arguing that the NSA has a legitimate “ongoing” probable cause to conduct mass surveillance. That is, they are effectively claiming the government has a legitimate “ongoing” probable cause not to believe specific individuals may be engaging in terrorist activity, but instead to believe all of us may be engaging in such activity.
Put another way, NSA defenders’ argument that the FISA court’s mass-surveillance warrants comply with the Fourth Amendment boils down to this: no matter who we are or what we do, the government has probable cause to automatically consider all of us suspects all the time.
Is such a perpetual population-wide presumption of criminality legitimate? Does the executive branch really have “ongoing” probable cause to view the entire citizenry as potential criminals worthy of judiciary-sanctioned surveillance? These are some of the huge questions that the Supreme Court has used technicalities to try to avoid.