That Lawfare post is talking about the same case I mentioned, Clapper. It was posted in 2012, half a year before the Supreme Court held in February 2013 that plaintiffs did not have standing to sue the NSA.
If anything, that Lawfare post punctuates how the courts have been ineffective in curtailing NSA even before the Clapper decision, and how Congress has expanded surveillance. Excerpts:
"in its first-ever decision in In re Sealed Case, the FISA Court of Review held that such legislation [Patriot Act] did not itself violate the Fourth Amendment..."
"Congress in the FAA (building on the Protect America Act of 2007) specifically authorized programmatic warrantless foreign intelligence surveillance in a manner almost guaranteed to sweep up a substantial volume of communications involving U.S. persons..."
Nice try, though. Still waiting for that list of successful court challenges that reined in the NSA. :)
Agree to disagree I suppose. The article shows that multiple Courts of Appeals have examined the issue, and not given carte blanche to the executive to search and seize Americans abroad without review and potential exclusion of the evidence derived.
On the legislative side, Congress expanded those authorities because Justice successfully argued that the then current authorities (not including the programs unilaterally authorized by President Bush which were widely seen as illegal), were not sufficient to counter the threat. That suggests that the Courts (or perhaps executive branch overseers like Attorney General, see the Ashcroft-Comey-Gonzalez hospital incident) were offering substantial opposition to the orders being given to NSA. I expected that article to include a certain case, In Re Terrorist Bombings of U.S. Embassies in East Africa, which which is a very interesting opinion about the 4th amendment in a foreign territory context, and and intelligence vs law enforcement context. You might find it interesting.
Note that I'm not suggesting that these authorities are necessary or sufficient to counter any given 'threat', just that Courts have examined the executive's actions, even in the context of gathering foreign intelligence overseas, and crafted rules and doctrines to check its impact on the 4th amendment.
A couple of other background law review articles(pdf warning):
> "Congress in the FAA (building on the Protect America Act of 2007) specifically authorized programmatic warrantless foreign intelligence surveillance in a manner almost guaranteed to sweep up a substantial volume of communications involving U.S. persons..."
If we take it as true that governments in general in the U.S. are not so much as allowed to incidentally pick up communications then it seems like things such as municipal-run ISPs would have to be illegal by definition.
Additionally, it's not the job of FISA (or its Review Court) to overturn Supreme Court precedent, and such precedent has long held that foreign-targeted communications can be intercepted unilaterally under conditions laid out by law (even if such comms are part of a larger conversation also involving U.S. persons).
We can argue that this kind of result makes no sense in light of the Internet, and that therefore the FISA Court construct is inadequate in that regard (since you can't exactly easily appeal this stuff to the Supreme Court since it won't work its way through the normal court systems). But that doesn't mean the FISA Court of Review decision was incorrect either, or that Congress doesn't have the Constitutional ability to pass stuff such as PAA 2007.
The courts and law need to catch up to the Internet, sure, but at the same time that's a very tough nut to crack in general since anything regulating any part of the Internet is going to touch many different competing interests all at once.
If anything, that Lawfare post punctuates how the courts have been ineffective in curtailing NSA even before the Clapper decision, and how Congress has expanded surveillance. Excerpts:
"in its first-ever decision in In re Sealed Case, the FISA Court of Review held that such legislation [Patriot Act] did not itself violate the Fourth Amendment..."
"Congress in the FAA (building on the Protect America Act of 2007) specifically authorized programmatic warrantless foreign intelligence surveillance in a manner almost guaranteed to sweep up a substantial volume of communications involving U.S. persons..."
Nice try, though. Still waiting for that list of successful court challenges that reined in the NSA. :)