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Special court ruling upholds Bush surveillance policy

By The Associated Press
01.16.09

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.


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ACLU sues government for 'spying' information
Lawsuit says public deserves to know reach of government’s powers under foreign-surveillance law, including how many e-mails, phone calls have been collected. 06.06.10

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