Jacob Sullum

The whole point of judicial review, of course, is to avoid having to put all our trust in the competence, integrity and good intentions of executive-branch officials. If the Fourth Amendment’s protection against "unreasonable searches and seizures" means anything, it means that the people doing the searches and seizures don’t get to decide which privacy rights are legitimate.

Now that Congress has given its blessing to warrantless surveillance of international communications involving people in the United States, legalizing what the National Security Agency did without statutory authority for five years after Sept. 11, the courts may have a chance to address the status of such eavesdropping under the Fourth Amendment. Some legal scholars argue that it might be constitutional under the "border search exception," which allows warrantless examinations of people and things entering the country.

However the courts resolve that issue, do you want every communication you have with someone in another country to be fair game for the government’s snooping, based on nothing more than untested suspicion? As you ponder that question, recall that Attorney General Alberto Gonzales claimed the administration had to violate FISA because a Republican-controlled Congress in the immediate aftermath of Sept. 11 would not have agreed to the changes that a Democrat-controlled Congress has approved by a comfortable margin six years later.

Jacob Sullum

Jacob Sullum is a senior editor at Reason magazine and a contributing columnist on Townhall.com.
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