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Intelligence Court Releases Ruling in Favor of Warrantless Wiretapping

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By Del Quentin Wilber and R. Jeffrey Smith
Washington Post Staff Writers
Friday, January 16, 2009

A special federal appeals court yesterday released a rare declassified opinion that backed the government's authority to intercept international phone conversations and e-mails from U.S. soil without a judicial warrant, even those involving Americans, if a significant purpose is to collect foreign intelligence.

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The ruling, which was issued in August but not made public until now, responded to an unnamed telecommunications firm's complaint that the Bush administration in 2007 improperly demanded information on its clients, violating constitutional protections against unreasonable searches and seizures. The company complied with the demand while the case was pending.

In its opinion, a three-judge panel of the U.S. Foreign Intelligence Surveillance Court of Review ruled that national security interests outweighed the privacy rights of those targeted, affirming what amounts to a constitutional exception for matters involving government interests "of the highest order of magnitude."

The opinion, written by the court's chief judge, Bruce M. Selya, was extraordinary in several respects: It was partly redacted, and it referred to court pleadings that remain sealed. The ruling also hinged partly on a detailed, secret account by the government to the court of its surveillance procedures in 2007.

The judges, who are assigned to the court by the chief justice of the United States, concluded that the government's protections and restrictions included in the 2007 procedures were appropriate. "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," Selya wrote in the 29-page opinion.

He added that requiring a warrant in such cases would probably "hinder the government's ability to collect time-sensitive information and, thus, would impede the vital national security interests that are at stake."

A Justice Department statement about the ruling called it "important" because it upheld the legality of Bush administration surveillance directives in 2007.

But independent experts said it is unclear whether the ruling would have a broader effect. The case involved the Protect America Act, a surveillance law that Congress has since altered. The court also declared that its review addressed only how the law was applied in 2007, not its underlying constitutionality.

Since then, Congress has approved new foreign intelligence surveillance legislation. It does not require, for example, that agencies have "probable cause" to believe that the person being targeted is a foreign agent, but instead allows more wide-ranging surveillance. It also does not limit the intelligence-gathering to a 90-day period, as previously required.

Jameel Jaffer, head of the American Civil Liberties Union's national security project, said the appellate court was "wrong to hold that the warrant requirement does not apply to foreign intelligence investigations." But he said its relevance to controversial Bush administration domestic surveillance between 2001 and 2005 is unclear, because so little is known about the nature of those efforts or the Justice Department's underlying legal justifications for them.

"We still don't know what those actions were" and whether they would also have met the court's approval, said Jaffer, who is challenging the constitutionality of the new surveillance law before a New York federal district court.

In this case, the company protested the government's demand for information and initially refused to comply. The Bush administration took the case to the Foreign Intelligence Surveillance Court, where U.S. District Judge Reggie B. Walton upheld the government's position in a secret ruling. The firm began to comply "under threat of civil contempt," the ruling released yesterday said.

In its appeal, the firm disputed the existence of an exemption to the Fourth Amendment's protection against unreasonable search for foreign intelligence surveillance. The company said that even if an exemption did exist, the government's demands were "unreasonable" because collecting such information for foreign intelligence may merely be a "significant" purpose under the law, rather than its "primary" purpose.

The appeals court struck down both arguments. The Supreme Court has recognized other exemptions, the ruling said, citing drug testing without warrants of high school athletes and railroad workers and frisking without warrants of those stopped by police for investigations. Selya also cited as precedent for the panel's conclusion a 1926 ruling by the Supreme Court that government officers should be regarded by the courts as acting properly in the absence of clear evidence to the contrary.

The ruling by the appellate court was only the second to be published. The panel was created in 1978 but did not meet to consider any case until 2002. In that decision, it rebuffed demands by the lower surveillance court to impose restrictions on some FBI wiretaps, ruling that the constraints were not required by the Constitution.

Yesterday's ruling can be appealed only to the Supreme Court.


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