January 19, 2009
FISA Court Upholds Surveillance Program
Last week the U.S. Foreign Intelligence Surveillance Court of Review--the appellate panel under FISA--affirmed a lower FISA court ruling that the Protect America Act of 2007 did not violate the Fourth Amendment. The redacted opinion is here.
The PAA authorizes the government to direct communications service providers to assist it in acquiring foreign intelligence involving persons reasonably believed to be outside the U.S. Congress enacted the PAA after the NYT reported in late 2005 that the administration had been engaging in this kind of surveillance without Congressional approval. (My previous post on this--and its abuses--is here.)
In short, the Court of Review held that the warrantless searches were reasonable, that there were plenty of layers of protection, and that claims of abuse were "overblown."
I won't dwell on the Fourth Amendment analysis. Instead I'll highlight the court's statement about executive power to engage in this kind of surveillance, sans protections and Congressional approval:
[W]e caution that our decision does not constitute an endorsement of broad-based, indiscriminate executive power. Rather, 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 court thus said nothing about executive authority to engage in this kind of surveillance without the detailed protections of the PAA and without Congressional approval.
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