Secret court: Warrantless NSA wiretapping fine
A secret federal appeals court has ruled that federal agencies can be authorized to conduct warrantless e-mail and telephone surveillance without violating the U.S. Constitution.
In a 29-page redacted opinion (PDF) released Thursday, the court ruled that presidents do not need to obtain warrants to conduct "foreign intelligence for national-security purposes"--which is effectively at least a partial endorsement of President Bush's views on expansive executive powers.
The central question in this case was how the Fourth Amendment's prohibition on "unreasonable searches and seizures" applies to intelligence agencies wishing to compel AT&T and other providers to open their networks to federal snoops hoping to listen in on international communications.
The U.S. Foreign Intelligence Surveillance Court of Review concluded that as long as the executive branch has "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 case arose because an unnamed telecommunications company believed that a now-lapsed surveillance law was unconstitutional and challenged it in the secret court.
Also on Thursday, Attorney General-designate Eric Holder was answering questions about warrantless wiretapping during his Senate confirmation hearing. Holder indicated that he would seek curbs on such National Security Agency programs.
Orders of the secret appeals court, which meets behind closed doors, are a rarity. (An earlier opinion, also siding with the Bush administration, was released in November 2002. The original classified, unredacted version of Thursday's opinion was finished in August 2008.)
That's because the Foreign Intelligence Surveillance Court typically hears only from one side--lawyers from the U.S. Department of Justice--and appeals happen only when the requests are denied. More than two decades went by without any appeals taking place.
The FISC appeals court's ruling is more important for what it says about its view of the Fourth Amendment than what it says about the particular statute in question, the Protect America Act.
The August 2007 law expanded the Foreign Intelligence Information Act and allowed warrantless eavesdropping on people "reasonably believed" to be outside the United States. It permitted the attorney general and the director of national intelligence to issue directives--valid for one year--to force communications providers to open their networks for that purpose.
By February 16, 2008, the Protect America Act had sunset, and was eventually repealed and revised in July 2008. But the directives issued during that time were still in effect, which led to the court challenge.
The Justice Department on Thursday said it "is pleased with this important ruling by the Foreign Intelligence Surveillance Court of Review, which upholds the constitutionality of foreign intelligence surveillance conducted under the Protect America Act of 2007."
Declan McCullagh, CNET News' chief political correspondent, chronicles the intersection of politics and technology. He has covered politics, technology, and Washington, D.C., for more than a decade, which has turned him into an iconoclast and a skeptic of anyone who says, "We oughta have a new federal law against this." E-mail Declan. 
The key phrase:
"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."
So they don't care if overhear you having an affair on your secret red mistress phone.
They are JUST looking for the BAD GUYS. If you're not one of them, then you shouldn't give a darn about who's listening in on your calls.
If you thing your arguement is correct then how did the NSA record a US Military solider in IRAQ having phone sex with his wife? Oh and not to mention, posted it on the Internet.
If you think the powers that be can't just spy on you because they feel like it today, you are sadly mistaken.
Papers, please.
Wait until you been victimized by this law and you will see how from our point of view.
Want to arrange a protest? good luck not having the cops show up at it in full riot gear suppressing your rights to protest.
Want to write a story anonymously like mark twain did good luck the FBI will be in your stuff in no time.
I find this secret court violates the US constitution right to citizens common law review of the evidence and challenge of this interpretation of the law. It is not Us the government allows it is we the people!
There should be NO ambiguity on this, the founders were as clear as a bell and put it in the simplest of terms.
That these guys can even "debate" it is an indication of just how twisted and evil they are.
Prosperity will not return to the US until these leeches are salted.
- by January 16, 2009 8:32 PM PST
- "how did the NSA record a US Military solider in IRAQ having phone sex with his wife? Oh and not to mention, posted it on the Internet. "
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- by scdecade January 17, 2009 5:38 AM PST
- See?!? Our tax dollars are even wasted on Big Brother paid pumpers. Do you honestly think the post to which this one replies to was posted by a real person? The government pays stooges to lull the people into submission by posting on social media. This is a well known fact that's been reported on widely. Nobody in their right mind believes spying without probable cause is a good thing. So this post follows the classic government trick. Always, always, always notice the reference to an unnamed threat. Implied danger is their number one tool. It does dawn on them that they themselves are the real danger; however, they won't allow themselves to see an alternative. That alternative is yours and my freedom, privacy, peace, and liberty.
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(9 Comments)Um...because there are people who are criminals and want to discredit the administration even if they have to break the law to do it? Seriously--how do you possibly think that the people looking for terrorists are interested in posting phone sex on the internet?