This Week's Senate Scandal: Scorn for the 4th Amendment

Senator Paul's amendment failed 79 to 12*.

What about the lesser tweaks I mentioned?

Senator Leahy tried to amend the law so that it would be extended for three years rather than five, but he was voted down -- put another way, we don't know who'll be president when this law comes up again for renewal. But what really gets me is the failure of Senator Merkley's amendment.

In order to understand it, you'll need a bit of information I'm hesitant to share, because if you're like most people, it'll sound too egregious to be true, and you might think that I am making it up.

I assure you I'm not.

The thing is that there's a legal interpretation that shapes how surveillance is conducted under current law. And it's a secret interpretation -- a memo written up by government lawyers explaining how the law works, but that Americans subject to the law aren't allowed to see. Senator Ron Wyden, who has seen it, says it's problematic -- that the 'lawyer take' isn't what a lot of people might expect, given the text of the law. But he isn't allowed to say anything more specific.

Openly debating the interpretation is verboten!

If you'll go into the weeds with me very briefly, here's the Electronic Frontier Foundation explaining further:

In 2010 and 2011, Obama administration officials promised to work to declassify secret FISA court opinions that contained "important rulings of law." These opinions would shed light on whether and how Americans' communications have been illegally spied on. Since then, the administration has refused to declassify a single opinion, even though the administration admitted in July that the FISA court ruled that collection done under the FAA had violated the Fourth Amendment rights of an unknown number of Americans on at least one occasion.

Starting with the precept that "secret law is inconsistent with democratic governance," Sen. Jeff Merkley's amendment would force the government to release any FISA court opinions that contain significant interpretations of the FISA Amendments Act so the American public can know how it may or may not be used against them.

And even Senator Merkley's amendment failed!

A majority of the Senate bears responsibility for this scandalous abandonment of the Fourth Amendment. And TechDirt rightly singles out Democratic Senator Dianne Feinstein of California:

Senators Ron Wyden and Jeff Merkley did their best to raise significant issues, but Senator Dianne Feinstein kept shutting them down with bogus or misleading arguments, almost always punctuated with scary claims about how we had "only four days!" to renew the FISA Amendment Acts or "important" tools for law enforcement would "expire." It turns out that's not actually true. While the law would expire, the provisions sweeping orders already issued would remain in place for a year -- allowing plenty of time for a real debate.

Furthermore, Feinstein continued to mislead (bordering on outright lies) about the FISA Amendments Act. While some of the proposed amendments focused on finally forcing the secret interpretation of the FISA Amendments Act to be disclosed, Feinstein held up the text of the bill and insisted there "is no secret law" and that "the text is public." That assumes that "the law" and "the text of the legislation" are one and the same. They are not. As Julian Sanchez notes, imagine that Supreme Court rulings were all classified, how would you interpret the Constitution? You could make guesses, based on what the law said, but without the court's rulings, you would not know what that meant in practice. That's exactly the situation we have with the FISA Amendments Act... and it's made even worse by the fact that those who have seen the still-secret interpretation -- such as Senator Wyden -- have made it clear that its quite different than what most people think the law says.

Just days ago I wrote about Congress' scandalous abandonment of the 5th amendment. And now the Senate has reminded attentive Americans that it has too little regard for the 4th Amendment too. Draw your own conclusions about what President Obama is signalling by going along.


*Its supporters included Senators Baucus (D-MT), Begich (D-AK), Cantwell (D-WA), Heller (R-NV), Lee (R-UT), Merkley (D-OR), Stabenow (D-MI), Tester (D-MT), Udall (D-NM), Webb (D-VA), and Wyden (D-OR).

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Conor Friedersdorf is a staff writer at The Atlantic, where he focuses on politics and national affairs. He lives in Venice, California, and is the founding editor of The Best of Journalism, a newsletter devoted to exceptional nonfiction.

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