FISA appeals court upholds wiretapping power

The NYT reports:

A federal intelligence court, in a rare public opinion, is expected to issue a major ruling validating the power of the president and Congress to wiretap international phone calls and intercept e-mail messages without a court order, even when Americans’ private communications may be involved, according to a person with knowledge of the opinion.

The court decision, made in December by the Foreign Intelligence Surveillance Court of Review, is expected to be disclosed as early as Thursday in an unclassified, redacted form, the person said. The review court has issued only two other rulings in its 30-year history.

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 constitutional authority to act without specific court approval in ordering national security eavesdropping.

From the beginning, it was asinine to suggest that the NSA needed a warrant to conduct foreign surveillance. Any ambiguity that existed arose because the law was written in a time when all our enemies were nation-states, and it did not explicitly anticipate non-state enemies, such as Al Qaeda.  The ambiguity has now been eliminated, making clear that overseas surveillance need not be limited to agents of nation-states, and the revised law has been ruled constitutional:

The appeals court is expected to uphold 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 of 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, according to the person familiar with the ruling. . .

[The FISA court] found that the Protect America Act did not violate the Constitution because the Fourth Amendment, which prohibits unreasonable searches and seizures, contained an exception for the collection of foreign intelligence information, according to the person familiar with the ruling.

The ruling does not resolve whether the NSA program was legal before the law was revised, and no ruling is ever likely because (as I understand it) the Protect America Act makes the question moot. Nevertheless (as even the NYT concedes), the new ruling suggests that it was legal. If foreign surveillance of non-state actors is legal with Congressional approval, it was probably legal when Congress hadn’t spoken clearly either way.

(Via the Corner.)

UPDATE: Decision here (big pdf).

UPDATE: The LA Times reports:

“My reaction?” [CIA director] Hayden said Thursday, referring to the ruling. “Duh.”

(Via the Corner.)

UPDATE: Orin Kerr disagrees with my final conclusion that the decision suggests the NSA program was legal at the time.  He thinks it doesn’t tell us much either way.

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