Operating pretty much in the shadows, the Foreign Intelligence Surveillance Court (FISA Court) has issued a series of rulings vastly expanding National Security Agency power.

The New York Times reports that the secret court has issued hundreds of rulings creating a vast body of law empowering the NSA to gather all kinds of data on Americans. The FISA Court initially limited itself primarily to approving wiretaps in foreign intelligence investigations. But the court has gradually taken on a much broader role, even assessing and ruling on broad constitutional issues. According to the Times, the FISA Court has gone as far as carving out an exception to the Fourth Amendment.

In one of the court’s most important decisions, the judges have expanded the use in terrorism cases of a legal principle known as the “special needs” doctrine and carved out an exception to the Fourth Amendment’s requirement of a warrant for searches and seizures, the officials said.

Ever since Truman decided in 1946 that intelligence gathering is a civilian, peacetime activity rather than one restricted to wartime, we’ve quietly succumbed to a creeping loss of Fourth Amendment rights. I keep thinking of the old Steve McQueen movie, “The Blob”. The Blob was a slow-moving, gooey…well, blob. The unwary that merely touched the creature would be inexorably sucked in and consumed. Sort of a mobile La Brea tar pit. So goes the federal government. Give ’em and inch, they’ll take a mile. Perhaps two.

In this case, we see court-creep. In 1989, the Supreme Court allowed drug testing of railroad workers, reasoning the “minimal intrusion” on privacy was outweighed by the need to keep people safe.  Who can argue with keeping drugged up engineers from running trains, right? Fast forward 24 years and we have a super-secret court building on the precedent to allow the NSA to gather up every American’s phone calls and Internet data. Of course there were in-between stretches of that 1989 ruling. There were airport security checkpoints and DUI roadblocks. That raised some eyebrows, but really – it was just to keep us safe.

And here we are today, with the federal government spying on all of us, parroting the same justification – to keep us safe. We’ve all been sucked up by the blob and most still don’t realize it happened.

The Blob rule is true regardless of agency, but with dramatic “life savers” and “keepers of American security” like the CIA, NSA, DHS, and even the DEA, the absorption of our rights has become terrifying. How frightening is it that we’ve warped a narrow legal allowance of drug-testing railroad workers into a mass collection of Verizon phone and internet records? I’m oh so moved that the 11 judges on the FISA court are shocked – shocked! that Americans are suspicious of their secret warrants. Are they kidding? Give ’em an inch, they’ll take three miles.

It only took seven years for the fledgling CIA to overthrow its first democratically elected government (that would be the prime minister of Iran… ever wonder why they’re mad at us?). How long will it take the alphabet soup agencies to completely and permanently strip away the Fourth Amendment? After all, it’s so terribly inconvenient for them. Give ’em an inch, they’ll take a mile…and another…and another.

How do we stop the blob? How about we never let it stop. We insist on following the Constitution – no matter what. Even in the seemingly small things. Then we don’t have to worry so much about the big ones.

Susan Kennison

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