By delegating broad authority to the executive branch to engage in warrantless wiretapping of Americans, the Foreign Intelligence Surveillance Act (FISA) raises serious potential constitutional issues. The Fourth Amendment, which forbids "unreasonable" searches and seizures and under which warrantless searches are presumptively unconstitutional, is difficult to square with the kind of powers claimed by Congress and the Executive Branch. Today, however, the Supreme Court decided to duck this crucial constitutional issue based on almost comically illogical reasoning.
Yesterday, the Supreme Court decided two Fourth Amendment cases. The results were mixed. In one case, the Court protected an individual from an unreasonable search. But in another case, the Court again watered down Fourth Amendment protections in the name of the War on (Some Classes of People Who Use Some) Drugs.
Warren Hill has an IQ below 70. Despite this, barring an unlikely intervention by the Supreme Court, he will be executed by the state of Georgia tonight. The likelihood of this outcome is a lesson in how Supreme Court decisions can't always be taken at face value.
President Obama's decision to nominate John Brennan to head the CIA was certainly not encouraging to anyone concerned about the administration's record on war powers and civil liberties. Nominating Brennan, who played a significant role in the CIA during the Bush administration, symbolizes the extent to which the abuses of the Bush administration have become mainstream in American government. Brennan's confirmation hearing before the Senate on Thursday reflects this as well.