January 17, 2009 3:02PM

What the FISA Court of Review Said and Didn’t Say

After a quick read of the FISA Court of Review’s latest opinion on NSA wiretaps (In Re: Directives) …

Essentially, the Court affirmed that the Protect America Act was constitutional as applied to a particular telecom company. More specifically, the Court held: (1) A warrant might impose unreasonable delay. There’s a “special needs” exception to the warrant requirement for foreign intelligence targeted at a person reasonably believed to be outside the US. (2) The “reasonableness” requirement of the 4th Amendment was not violated. National security trumps the privacy right of targets even without a court‐​reviewed determination of the purpose, target, and particularity of the search. Executive branch review of those items, along with minimization procedures, provided sufficient safeguards.

Notably, the Court did not address the original NSA warrantless surveillance program, which covered communications between US persons in the US and persons outside the US, regardless of the target’s location. Moreover, the Court’s holding was constitutional, not statutory. No one challenged whether the NSA was complying with the terms of the Protect America Act. The issue was whether that Act was itself constitutional, as applied. Recall that my principal concern regarding the original NSA program was whether the executive branch had unilaterally adopted procedures that Congress had either not approved or expressly rejected. It was the Youngstown paradigm that the executive branch had offended, even if the original NSA program might have passed constitutional muster had it been enacted by Congress. Nothing in the Court’s latest opinion is contrary to that assessment of the original program.

It’s also worth noting that the Protect America Act was replaced by the FISA Amendments of 2008, which requires, among other things, an individualized probable cause determination by the FISA court to surveil US persons outside the US. In other words, the Court’s latest opinion addresses an act that, first, has been superseded and, second, was deemed by Congress to be unwise as a policy matter even if it survived constitutional scrutiny.