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FISA Appeals Court Releases Ruling
Posted by: MichaelW on Thursday, January 15, 2009

In a rare ruling, the intelligence appeals court found that the federal government was within constitutional bounds with respect to warrantless surveillance:
The court decision, made in August 2008 by the Foreign Intelligence Surveillance Court of Review, came in an unclassified, redacted form.

The decision marks the first time since the disclosure of the National Security Agency’s warrantless eavesdropping program three years ago that an appellate court has addressed the constitutionality of the federal government’s wiretapping powers. In validating the government’s wide authority to collect foreign intelligence, it may offer legal credence to the Bush administration’s repeated assertions that the president has the power to act without specific court approval in ordering national security eavesdropping that may involve Americans.

The Aug. 22 appeals court decision upheld a secret ruling issued last year by the intelligence court that it oversees, known as the Foreign Intelligence Surveillance, or FISA, court. In that initial opinion, the secret court found that Congress had acted within its authority in August 2007 when it passed a hotly debated law known as the Protect America Act, which gave the executive branch broad power to eavesdrop on international communications.
The rightosphere is claiming vindication for President Bush, but Steve Benen disagrees:
The New York Times originally reported that the FISA court's ruling offered "legal credence to the Bush administration's repeated assertions that the president has constitutional authority to act without specific court approval in ordering national security eavesdropping." But based on the additional reporting, that's just wrong. The decision has nothing to do with the president's inherent authority, and everything to do with Congress' ability to shape surveillance law, giving the White House far more authority than it was previously allowed.

Put another way, the case was about the legality of the Protect America Act. It cleared the court's examination. But as A.L. explained, this doesn't lend "credence" to the administration's legal arguments at all.
Benen's correct that the ruling specifically ruled on the Protect America Act, but the FISCR went further then that. It actually ruled definitively on the question of whether there is a foreign intelligence exception to the Fourth Amendment's warrant requirement (pg. 17 [pdf]):
... we hold that a foreign intelligence exception to the Fourth Amendment's warrant requirement exists when 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.
Among the reasons stated as supporting this holding is that:
... there is a high degree of probability that requiring a warrant would hinder the government's ability to collect time-sensitive information and, thus, would impede the vital national security interests that are at stake ... Compulsory compliance with the warrant requirement would introduce an element of delay, thus frustrating the government's ability to collect information in a timely manner.
The FISCR goes on to make clear that it is not giving the government "carte blance" (the reasonableness requirement must still be met), but as a matter of constitutional law the ruling makes abundantly clear that warrants are not necessarily mandated when matters of national security are at stake.

I haven't digested the entire ruling yet, but from what I've read so far the FISCR sure does appear to validate the

arguments advanced by the Bush Adminstration for its warrantless surveillance program.

Based on the above, I think that Anonymous Liberal's analysis on the ruling is also incorrect (my emphasis):
From the moment the NSA program was first disclosed in December of 2005, the issue has always been whether the president has the "inherent authority" to disregard a statute like FISA that purports to place restrictions on his ability to conduct surveillance of Americans. The Bush administration claimed it had such powers, despite overwhelming legal authority to the contrary. When Congress passed the Protect America Act, it statutorily authorized the President's subsequent surveillance activities, assuming he stays within the rather wide confines of that law. The court here has merely upheld Congress's prerogative to pass such a law. There's nothing here that lends any credence whatsoever to claims of law-breaking authority made by the Bush administration over the last few years.
The issue as expressed by AL is certainly how Bush's opponents tried to frame it, but that's not exactly how it all went down. Bush argued that the Executive holds certain powers that cannot be circumscribed by an act of Congress, such as the means of conducting national security, which may or may not comport with the Constitution as expounding upon by the Supreme Court. But the foreign exception to the Fourth Amendment was always part and parcel of the argument, as was the need for timely collection of intelligence. They consistently argued that requiring a warrant in each instance before surveilling a suspect would cost the United States valuable intelligence that was necessary to protect our national security interests. The FISCR validated that reasoning without so much as hairs-breadth of wiggle room. Since the Bush Administration really only needed one of their arguments to work, the fact this appeals court ruled definitely on the foreign intelligence exception would seem to vindicate them.

As I said above, I haven't gone through the entire opinion yet, and my analysis above is subject to change. But for now, I think that the rightosphere has justifiable reasons to crow.

UPDATE [Dale]: I don't intend to "crow", but I would point out my analysis from December, 2005, which now appears to be essentially vindicated at both the trial and appeal level.
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Previous Comments to this Post 

Funny, the timing of all this.
Written By: Joel C.
URL: http://
The ruling only tells us that government doesn’t violate the constitution when it spies sans warrant for foreign intelligence purposes.

Bush’s argument is totally different: he argues that duly enacted law limiting his ability to conduct that spying is unconstitutional.

That’s a very different question, and wasn’t addressed by the FISA court.
Written By: jpe
URL: http://
Just to sharpen the above:
Bush argued that the Executive holds certain powers that cannot be circumscribed by an act of Congress
Right, that was Bush’s argument. You’ll note that the FISA court doesn’t address that. And that’s because, as AL notes, they were only ruling on whether Congress could pass and the President sign a bill that allows warrantless wiretapping.
Written By: jpe
URL: http://
You’ll note that the FISA court doesn’t address that.
Well, yes and no. The issue isn’t directly addressed, but it’s fairly (and I think strongly) inferred that the NSA program could not have violated FISA.

Since (a) the only point of FISA was to enforce the Fourth Amendment rights of citizens, and since (b) the FISCR ruled definitively that there is a foreign intelligence exception to the Fourth Amendment, then (c) it is not possible for the the NSA program (a foreign intelligence gathering program) to violate FISA.

Conclusion (c) must follow from (a) and (b) because FISA is necessarily limited in scope by the Fourth Amendment. That which does not transgress the 4th, cannot transgress FISA.

Therefore, to the extent the NSA program may seem to be in violation of FISA, the FISCR decision makes clear that to the extent it was used for foreign intelligence gathering purposes it could not possible be in violation of that statute.

None of that is to say that there were no instances where the government overstepped it’s bounds with respect to its conducting the NSA program. I have no idea if they have or haven’t. What the case does settle, however, is that the NSA program is not facially invalid, much less a plainly illegal transgression of the law as many opponents have stated.
And that’s because, as AL notes, they were only ruling on whether Congress could pass and the President sign a bill that allows warrantless wiretapping.
Yes, and that’s different from the NSA program how?
Written By: MichaelW
the only point of FISA was to enforce the Fourth Amendment rights of citizens
We don’t need laws to enforce the amendments; they’re self-enforcing, so to speak. FISA sets limits on the president’s power over and above the fourth amendment. The fourth amendment is the floor of acceptable conduct, and FISA raises that floor a bit.

The only relevant legal question is whether the Congress is able to bind the president like that and create rules for surveillance over and above fourth amendment constraints. You’re partly right: the court does tell us that the NSA program wouldn’t violate the fourth amendment if it weren’t in violation of FISA. But the rub of the Bush program was that it was illegal. And it was illegal because it violated FISA, not because it violated the fourth amendment.
Written By: jpe
URL: http://
Here’s Orin Kerr on the decision:
1. First, keep in mind that the opinion has only a very slight connection to the legal issues that we debated ad infinitum back in 2005-2006 on the legality of the Terrorist Surveillance Program. As you may recall, the major legal problem with the TSP as put in place in 2001 was statutory, not constitutional: The program appeared to violate the FISA statute. FISA was later amended to allow a modified version of the TSP, however, and the new opinion is a Fourth Amendment challenge to the procedures permitted by the amendment, the 2007 Protect America Act. So this opinion doesn’t say anything at all about whether the TSP violated FISA.
Written By: jpe
URL: http://
Yes, and that’s different from the NSA program how?
The NSA program was initially in violation of FISA. So the legal question there is whether the President can violate the statute. The Bush team advanced two arguments: (1) FISA is unconstitutional, and the President doesn’t have to obey it; and (2) assuming FISA is unconstitutional, the NSA program doesn’t abrogate the Fourth Amendment.

There was some (incorrect) screeching from liberals that (2) was false, but the main thrust of most of the criticisms from liberals that understand law was that (1) was false.

As many liberals expected (and among whom I count myself), the court agreed with (2). It didn’t address (1), though.
Written By: jpe
URL: http://
Benen is certainly becoming a reliable source of knee-jerk liberal screaming, isn’t he?
Written By: Bithead
You know that Patriot act & warrantless wiretapping you "pro-liberty" types so adored? It’s all under Obama’s control now...
Written By: TomD
URL: http://
Yep. And we’ll see what he does with it. If he actually abuses it the way you CLAIMED Bush did, we’ll hold him accountable.
Written By: SDN
URL: http://
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Written By: 7

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