WASHINGTON — A special appeals court for the first time has upheld a Bush
administration program of warrantless surveillance.
In a ruling released yesterday, the U.S. Foreign Intelligence Surveillance
Court of Review embraced the Protect America Act of 2007, which required
telecommunications providers to assist the government for national-security
purposes in intercepting international telephone calls and e-mails to and from
points overseas.
The decision, which involves the gathering of foreign intelligence, was made
last August but only released yesterday after it had been edited to omit
classified information. An unidentified telecommunications company had
challenged the law.
The court said the time needed to get a court warrant would hinder the
government's ability to collect time-sensitive information, impeding vital
national-security interests.
The challenge to the law has presented no evidence of any actual harm or any
broad potential for abuse, the court's three judges concluded.
"Our decision does not constitute an endorsement of broad-based,
indiscriminate executive power," the court said. "Rather, our decision
recognizes that where the government has instituted several layers of
serviceable safeguards ... its efforts to protect national security should not
be frustrated by the courts."
The decision does not address the legality of an earlier
warrantless-surveillance program that the Bush administration secretly put in
place without legislation from Congress, and which The New York Times exposed in
2005. The 2007 law that was the focus of the special court ruling expired in 2008, but
intelligence-gathering efforts that it authorized remained in effect.
Last year, Congress bowed to President George W. Bush's demands and passed
the FISA Amendments Act of 2008, shielding telecom companies from lawsuits under
the warrantless-wiretapping efforts initiated after the Sept. 11, 2001,
terrorist attacks.
The American Civil Liberties Union said the FISA Amendments Act of 2008 lacks
constitutional safeguards that the appeals court suggested in its ruling are
necessary. That aspect of the court decision will be useful in challenges to the
FISA Amendments Act of 2008, said Jameel Jaffer, director of the ACLU's National
Security Project.
Government monitoring of Americans' phone calls and e-mails should require a
court warrant beforehand, the ACLU said.
The Justice Department said it was pleased with the ruling, which is only the
second by the court since its establishment more than 30 years ago. The decision
upheld an opinion by U.S. District Judge Reggie Walton of the U.S. Foreign
Intelligence Surveillance Court.