“We may even cheer on those who ask us to … forfeit our personal freedoms. Of course, this is no new story. Even the ancients warned that democracies can degenerate toward autocracy in the face of fear. … And rule by indefinite emergency edict risks leaving all of us with a shell of a democracy and civil liberties just as hollow.”

Justice Neil M. Gorsuch

In response to President Richard Nixon’s unlawful use of the FBI and the CIA to spy on his domestic political opponents in the early 1970s, Congress enacted the Foreign Intelligence Surveillance Act.

It limits all domestic surveillance not for law enforcement purposes to the procedures set forth in the act.

Thus, if federal agents suspect you are a drug dealer and have probable cause of crime to present to a judge, the judge may sign a search warrant enabling the feds to listen to your conversations and monitor your text messages and emails. That’s ordinary law enforcement.

But if the feds don’t know who you are, but know that you live in a community that has folks who think differently than they do about national security, they can go to the FISA Court and present probable cause and that court, which grants 99.96% of all requested search warrants, will issue the a warrant authorizing the same level of government scrutiny as if the feds were looking for evidence of a crime.

This is all consistent with FISA but, because it directly violates the Fourth Amendment, it is unconstitutional.

When the feds have told a federal judge what their probable cause is, what they are looking for, why they believe they will find it and who they think is engaged in criminal activities, they are entitled to a warrant.

In the case of FISA, the feds do not know what or whom they are looking for. One infamous FISA search warrant permitted the feds to capture all telephone calls transmitted on all fiber optic cables used by Verizon.

Shortly after 9/11, President George W. Bush sought an amendment to FISA that would enable the feds to engage in warrantless surveillance upon foreign persons.

Even though the Fourth Amendment protects all people, Bush persuaded a compliant Congress that there was much to fear from foreign persons. It was an emergency, he said, and time for the Constitution to bend before it breaks.

Congress enacted Section 702 of FISA, and it expires in six months.

Section 702 directly contradicts the core language of the Fourth Amendment. On its face, it permits the feds to conduct warrantless surveillance on foreign persons who are either physically or digitally present in the U.S.

Thus, for example, if you call or text or email a bookseller in London from your home in New York, the feds can capture all those communications without a search warrant.

And then the feds can capture the future calls you make and texts and emails you send. And then they can capture all the communications of the persons you reached and all the persons they reached.

When the feds engage in all this capturing, they can access data only with respect to foreign persons. So, if a janitor in the Russian embassy is really a Russian spy trying to flip an American and the feds hear this, they can summarily ship the so-called janitor back to Russia.

Last week, a judge of the FISA Court revealed that the FBI routinely accesses the 702 database without search warrants.

And then this FISA Court judge — heedless to the Constitution and fearful of God-only-knows-what — permitted the feds to retain what they unlawfully and unconstitutionally stole. They accessed the Section 702 database by computer hacking — the same crimes for which the same feds prosecute dozens of persons annually.

Here we go again. Does the government work for us, or do we work for the government? What employee gets away with spying on his employers? What emergency will the government concoct next?