· Senator Jeff Merkley’s (D-Ore.) proposal requiring the Attorney General to declassify FISA court decisions, which include significant legal interpretations, so Americans could have at least some opportunity to understand the authority on which warrantless wiretaps are executed. This amendment was defeated 37 to 52.
· Senator Ron Wyden’s (D-Ore.) proposal would have required the Director of National Intelligence to disclose approximately how many communications from American citizens have been subject to wiretapping, including “wholly domestic” communications -- an answer he has yet to receive from intelligence officials. This amendment went down 43 to 52.
· Senator Rand Paul (R-Ky.) proposed what possibly was the most “radical” of the four amendments to FISA. It would apply Fourth Amendment protections to all electronic communications, and barred government at any level from obtaining these communications without a warrant, even if held by a third-party. This amendment was defeated 12 to 79.
The shallow Senate debate and quick dispatch of any constitutionally-based amendments did a disservice to the American people and to the Constitution; which, as Merkley noted, was accomplished “under a falsely created pressure that it needs to be done without any amendments in order to match the bill from the House.” This, he added, is simply “a way of suppressing debate on critical issues here in America.”
There is a faint possibility the Supreme Court may in the coming year take up a challenge to the warrantless FISA surveillance; but the High Court in recent years has shown itself troublingly differential to almost every claim of executive power in the name of “national security.” Some federal courts have gone so far as to deny persons subjected to warrantless surveillance the ability to even bring a lawsuit challenging such power, on the theory they could not definitively prove they were the subjects of secret monitoring – a virtual impossibility given the secretive nature of the government’s actions.
Thus, even though warrantless wiretapping of U.S. citizens is unconstitutional on its face, the broad reach of FISA coupled with the inherent nature of secret surveillance make it virtually impossible to challenge what we all know to be illegal.