By Conor Friedersdorf

In a story on the secret body of law being created by the FISA court, The New York Times reports that “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.” A judicially created exception to the Fourth Amendment?! How did that happen, you might wonder.

The newspaper explains:

The special needs doctrine was originally established in 1989 by the Supreme Court in a ruling allowing the drug testing of railway workers, finding that a minimal intrusion on privacy was justified by the government’s need to combat an overriding public danger. Applying that concept more broadly, the FISA judges have ruled that the N.S.A.’s collection and examination of Americans’ communications data to track possible terrorists does not run afoul of the Fourth Amendment…

The article goes on to quote a legal expert who explains why the FISA court’s expansion of the 1989 precedent is highly dubious (and not just because it was issued in secret, though that is also problematic). And the FISA  court’s interpretation is wrongheaded.

But that doesn’t mean it wasn’t anticipated by civil libertarians when that bygone case put us on the slippery slope we’ve tumbled down. It is thus the perfect time to return to Justice Thurgood Marshall’s dissent in Skinner v. Railway Labor Executives’ Association.

Read More Thurgood Marshall’s Prescient Warning: Don’t Gut the 4th Amendment – Conor Friedersdorf – The Atlantic.