The Surveillance State

The FISA Court: A Rubber Stamp for Tyranny

The Foreign Intelligence Surveillance Court (FISC), created in 1978, was supposed to be a check on government surveillance power. Instead, it became its enabler. Between 1979 and 2012, the FISA Court approved 33,942 out of 33,949 government surveillance requests — a 99.97% approval rate. It rejected 11 requests in 33 years.

The court operates in total secrecy. Its proceedings are classified. Only the government argues before it — there is no adversarial process, no defense attorney, no one to challenge the government's claims. The judges are appointed by the Chief Justice of the Supreme Court alone, with no Senate confirmation. For decades, a majority of FISA judges were Republican appointees of a single Chief Justice (John Roberts).

The FISA Court issued secret legal opinions that effectively rewrote surveillance law. In the most extreme example, the court ruled that the NSA could collect all phone metadata in America because it was “relevant” to terrorism investigations — interpreting the word “relevant” to mean “everything.” This secret reinterpretation of law was binding but hidden from the public and from most members of Congress.

As Senator Ron Wyden (D-OR), a member of the Intelligence Committee, warned for years before the Snowden revelations: the government was operating under a “secret interpretation of the law” that would shock Americans if they knew about it. He was right — but he couldn't tell anyone because the interpretation itself was classified.

Edward Snowden: Traitor or Patriot?

Edward Snowden was a 29-year-old NSA contractor working for Booz Allen Hamilton in Hawaii when he made the most consequential decision in the history of American whistleblowing. Over several months, he copied approximately 1.5 million classified documents detailing the NSA's global surveillance programs — and gave them to journalists Glenn Greenwald, Laura Poitras, and Barton Gellman.

The US government charged Snowden with espionage and theft of government property. He fled to Hong Kong, then to Moscow, where he was stranded when the State Department revoked his passport. He has lived in Russia since 2013 and was granted Russian citizenship in 2022.

The government says Snowden endangered national security. But his revelations led to: the USA FREEDOM Act (2015), which ended bulk phone metadata collection; major tech companies implementing end-to-end encryption; public awareness of surveillance that polls show the majority of Americans oppose; and the only meaningful public debate about government surveillance in American history.

Snowden could not have used official whistleblower channels — they don't protect intelligence community contractors, and previous NSA whistleblowers (Thomas Drake, William Binney, J. Kirk Wiebe, Ed Loomis) who went through official channels were prosecuted, harassed, or had their lives destroyed. The system is designed to prevent exactly the kind of disclosure Snowden made.

The question is not whether Snowden broke the law — he did. The question is whether the government should have the power to conduct mass surveillance on its own citizens in secret, shield that surveillance behind classification, and prosecute anyone who tells the public what their government is doing to them. The Founders would have had a clear answer.

The Libertarian Case: The 4th Amendment Is Dead

The Fourth Amendment to the United States Constitution:“The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”

Read that again. Now consider: the NSA collected every phone record in America without a warrant. The FBI searches Americans' communications 278,000 times per year without a warrant. The government taps into the servers of every major tech company. Police use fake cell towers to intercept communications of everyone in a neighborhood. Facial recognition databases contain photos of half the adult population.

The Fourth Amendment doesn't have a “national security” exception. It doesn't have a “terrorism” exception. It doesn't have a “metadata” exception. It says “no warrants shall issue but upon probable cause” — not “unless the FISA Court says it's okay” and not “unless it's really important.”

Benjamin Franklin's warning — “Those who would give up essential Liberty, to purchase a little temporary Safety, deserve neither Liberty nor Safety” — has been proven prophetic. We gave up the liberty. We didn't get the safety. The intelligence community's own reviews found that mass surveillance was “not essential” to preventing attacks. The Boston bombers, the Fort Hood shooter, the Pulse nightclub attacker — all were known to the FBI before they struck. The haystack was too large to find the needles.

The surveillance state is not a bug of the War on Terror — it is its primary product. The trillions spent, the hundreds of thousands killed, the countries destroyed — all of that would be horrifying enough. But the most lasting damage may be what was built at home: a surveillance infrastructure that treats every American as a suspect, collects their most intimate data without their knowledge or consent, and operates behind a wall of classification that makes accountability impossible.

The infrastructure built to fight terrorists will long outlast the War on Terror. It will be turned — it is already being turned — on domestic protesters, journalists, political dissidents, and ordinary Americans. The technology doesn't care who the target is. And a government that has tasted unlimited surveillance power will never voluntarily give it up. As Senator Frank Church warned in 1975, after investigating the NSA's predecessor programs:“That capability at any time could be turned around on the American people, and no American would have any privacy left... There would be no place to hide.”He was right. We are there.