Sunday, January 18, 2009

Foreign Intelligence Surveillance Court of Review Rules Wiretapping Legal: Updated NYT Story

"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."--Fourth Amendment to the U.S. Constitution

"A foreign intelligence exception to the Fourth Amendment's warrant requirement exists when the surveillance is conducted to obtain foreign intelligence for national security purposes and is directed against foreign powers or agents of foreign powers reasonably believed to be located outside the United states."---United States Foreign Intelligence Surveillance Court of Review (8-22-08)

On January 15, 2009, the New York Times carried an article that said "a federal intelligence court, in a rare public opinion, issued a major ruling [see here] validating the power of the president and Congress to wiretap international phone calls and intercept e-mail messages without a specific court order, even when Americans’ private communications may be involved."

I reported on that story here.

Now it seems that the NYT (1-15-09) story has been rewritten:

In a rare public ruling, a secret federal appeals court has said telecommunications companies must cooperate with the government to intercept international phone calls and e-mail of American citizens suspected of being spies or terrorists.

The ruling came in a case involving an unidentified company’s challenge to 2007 legislation that expanded the president’s legal power to conduct wiretapping without warrants for intelligence purposes.

But the ruling, handed down in August 2008 by the Foreign Intelligence Surveillance Court of Review and made public Thursday, did not directly address whether President Bush was within his constitutional powers in ordering domestic wiretapping without warrants, without first getting Congressional approval, after the terrorist attacks of 2001.

Several legal experts cautioned that the ruling had limited application, since it dealt narrowly with the carrying out of a law that had been superseded by new legislation. But the ruling is still the first by an appeals court that says the Fourth Amendment’s requirement for warrants does not apply to the foreign collection of intelligence involving Americans. That finding could have broad implications for United States national security law.

The court ruled that eavesdropping on Americans believed to be agents of a foreign power “possesses characteristics that qualify it for such an exception.”

Bruce M. Selya, the chief judge of the review court, wrote in the opinion that “our decision recognizes that where the government has instituted several layers of serviceable safeguards to protect individuals against unwarranted harms and to minimize incidental intrusions, its efforts to protect national security should not be frustrated by the courts.”

The three-judge court, which hears rare appeals from the full Foreign Intelligence Surveillance Court, addressed provisions of the Protect America Act, passed by Congress in 2007 amid the controversy over Mr. Bush’s program of wiretapping without warrants. It found that the administration had put in place sufficient privacy safeguards to meet the constitutional standards of the Fourth Amendment’s ban on unreasonable searches. Because of that, the company had to cooperate, the court said.

That finding bolstered the Bush administration’s broader arguments on wiretapping without warrants, both critics and supporters said.

William C. Banks, a law professor at Syracuse University who has criticized the administration’s legal position on eavesdropping, said that while the ruling did not address Mr. Bush’s surveillance without warrants directly, “it does bolster his case” by recognizing that eavesdropping for national security purposes did not always require warrants. [Full text]

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