Intelligence wiretap power upheld
on Jan 15, 2009 at 9:38 pm
In a case that potentially could go to the Supreme Court, a special federal appeals court that operates almost entirely in secret has ruled that Congress did not act unconstitutionally in giving the government power to order telecommunications companies to aid in warrant-less national security wiretapping — eavesdropping mainly aimed overseas, but possibly reaching inside the U.S. and American citizens.
The decision by the Foreign Intelligence Surveillance Court of Review was actually made last Aug. 22, but was made public only Thursday, in a 29-page version with many parts deleted as classified. Even the identity of the telecom company that filed the challenge is deleted, as are the details of what it was ordered to do by federal officials, and when the orders were issued.
The impact of the ruling on the legality of the National Security Agency’s highly controversial electronic eavesdropping operation was not very clear Thursday, since the specific federal law at issue has expired, the ruling was limited to the specific facts of the case, it technically applies only to cooperation directives and thus does not resolve any issues of privacy of those who are overheard on the taps, and the Court of Review went to some lengths to suggest it was ruling as narrowly as possible. Even so, the decision sought to remove any significant constitutional doubt about the intelligence-gathering that has gone on since at least late 2007. (While the specific law at issue has expired, a replacement law has authorized continuation of the government’s eavesdropping power.)
“We caution,” the opinion said, “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, the efforts to protect national security should not be frustrated by the courts. This is such a case.”
Bruce M. Selya, a First Circuit Court judge who also is presiding judge of the Court of Review, wrote the opinion, joined by the other members, Senior Circuit Judges Morris S. Arnold and Ralph K. Winter, Jr.
 The case is titled “No. 08-01, In re: Directives (redacted text) pursuant to Section 105B of the Foreign Intelligence Surveillance Act.” The redacted opinion is here; a Jan. 12 order by that Court authorizing public release of the ruling is here.
The Court of Review is composed of judges chosen by Chief Justice John G. Roberts, Jr., or his predecessor. Under the “Protect America Act” passed in August 2007 and in effect until last Feb. 16, that Court has the authority to hear challenges to the wiretap-assistance directives issued to telecom companies by the U.S. Attorney General and the Director of National Intelligence.
Those challenges go initially to the Foreign Intelligence Surveillance Court, another secret tribunal that conducts such a review separate from its power to authorize foreign intelligence eavesdropping when it is done inside the U.S. If the FIS Court rejects the challenge of a telecom company, that firm may then appeal to the Court of Review. The 2007 Act allows either the government or the telecom company to ask the Supreme Court to review a Court of Review ruling, but that review is not mandatory.
Because the identity of the telecom company involved in the new ruling remains a secret, there is no way to check whether it plans to seek review by the Supreme Court. The 2007 law requires that any appeal papers filed with the Supreme Court are to be kept “under seal.” Even while such an appeal went forward, the wiretapping at issue — and the directives commanding telecom cooperation — are allowed to continue.
The very existence of this case in the secret courts was not known until Thursday. The Court of Review on Monday authorized the release of the redacted opinion, and then the opinion itself Thursday afternoon.  The secrecy is typical of the operations of both the special appeals tribunal and of the first-level court that has the authority to approve domestic intelligence-gathering wiretaps. (Thursday’s decision was only the second opinion by the Court of Review to be released publicly, in its 30-year history.)
Apparently only one telecom company was involved in the challenge. That much is clear from the opinion’s use of the singular, “the petitioner.” The opinion noted that the government had ordered the company to assist in “the surveillance of certain customers (redacted text and footnote).” Although the government had sought to include safeguards in its planned wiretapping, the opinion said, those efforts “did not impress the petitioner, which refused to comply with the directives.”
The government then asked the initial court, the FIS Court, to compel cooperation, and it did so. The company sought a delay until it could appeal to the Court of Review, but a stay was denied by the initial FIS Court, so the company “began compliance under threat of civil contempt.” Thursday’s ruling explicitly upheld the order to comply.
While the telecom company’s challenge was nominally a legal test of the government’s power to order its cooperation, it mounted a sweeping challenge to the constitutionality of the warrant-less wiretapping program itself. The constitutional issues, the Court of Review said, “lie at the heart” of the challenges.
In upholding the constitutionality of the wiretapping — at least so far as the cooperation directives were concerned, the Court of Review found that the Fourth Amendment did not require prior court approval through issuance of a warrant — at least in the “defined context” of cooperation directives to a telecom company.
It was only in that context, the tribunal said, that it was passing upon the constitutional issue. Since it found that this was an “as-applied” challenge, not a wholesale complaint against the wiretapping program overall, the Court said it was without authority to “speculate about the validity of the law as it might be applied in different ways or on different facts.”
Even with that limiting language, however, the opinion went on to make broad judgments about the need for foreign intelligence-gathering surveillance, and the constitutionality under the Fourth Amendment of doing so without a warrant.
While the tribunal said that the Supreme Court had not adopted a “foreign intelligence exception” to the Fourth Amendment’s warrant requirement, the Justices had recognized “a comparable exception” outside the foreign intelligence field. That is the “special needs” exception that the Supreme Court first laid out in connection with government-ordered drug testing.
In that setting, the Court of Review said, the Supreme Court “excused compliance with the Warrant Clause when the purpose behind the governmental action went beyond routine law enforcement and insisting upon a warrant would materially interfere with the accomplishment of that purpose.”
That, it concluded, is an exception that should now apply to foreign intelligence wiretapping. In that field, it commented, the govenrment’s interest in obtaining intelligence about “overseas foreign agents” is “particularly intense.”
It found 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.”
Among the telecom company’s complaints that the Court of Review rejected was an assertion that there is a prospect for abuse of wiretapping power because it could lead to “inadvertent or incidental collection of information from non-targeted United States persons.” The tribunal said that the concern with “incidental collections is overblown.” As long as such collections are “incidental,” it ruled, they do not violate the Fourth Amendment.
There was one potentially significant point in the ruling, but one that was obscured because it was not spelled out and because of deletion of an apparently telling footnote. The Court noted that the telecom company had belatedly raised “a specific privacy concern” that “could possibly arise under the directives.” It dismissed that “parting shot,” saying “no such issue falling within this description has arisen to date.” But, it added, it was directing the government “promptly to notify the petitioner if this issue arises under the directives.” (footnote deleted).
