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Secret court: Warrantless NSA wiretapping fine

Foreign Intelligence Surveillance Court of Review, which meets behind closed doors, says that with safeguards in place, Fourth Amendment does not prohibit the spying.

A secret federal appeals court has ruled that federal agencies can be authorized to conduct warrantless e-mail and telephone surveillance without violating the U.S. Constitution.

In a 29-page redacted opinion (PDF) released Thursday, the court ruled that presidents do not need to obtain warrants to conduct "foreign intelligence for national-security purposes"--which is effectively at least a partial endorsement of President Bush's views on expansive executive powers.

The central question in this case was how the Fourth Amendment's prohibition on "unreasonable searches and seizures" applies to intelligence agencies wishing to compel AT&T and other providers to open their networks to federal snoops hoping to listen in on international communications.

The U.S. Foreign Intelligence Surveillance Court of Review concluded that as long as the executive branch has "several layers of serviceable safeguards to protect individuals against unwarranted harms and to minimize incidental intrusions, its efforts to protect national security should not be frustrated by the courts."

The case arose because an unnamed telecommunications company believed that a now-lapsed surveillance law was unconstitutional and challenged it in the secret court.

Also on Thursday, Attorney General-designate Eric Holder was answering questions about warrantless wiretapping during his Senate confirmation hearing. Holder indicated that he would seek curbs on such National Security Agency programs.

Orders of the secret appeals court, which meets behind closed doors, are a rarity. (An earlier opinion, also siding with the Bush administration, was released in November 2002. The original classified, unredacted version of Thursday's opinion was finished in August 2008.)

That's because the Foreign Intelligence Surveillance Court typically hears only from one side--lawyers from the U.S. Department of Justice--and appeals happen only when the requests are denied. More than two decades went by without any appeals taking place.

The FISC appeals court's ruling is more important for what it says about its view of the Fourth Amendment than what it says about the particular statute in question, the Protect America Act.

The August 2007 law expanded the Foreign Intelligence Information Act and allowed warrantless eavesdropping on people "reasonably believed" to be outside the United States. It permitted the attorney general and the director of national intelligence to issue directives--valid for one year--to force communications providers to open their networks for that purpose.

By February 16, 2008, the Protect America Act had sunset, and was eventually repealed and revised in July 2008. But the directives issued during that time were still in effect, which led to the court challenge.

The Justice Department on Thursday said it "is pleased with this important ruling by the Foreign Intelligence Surveillance Court of Review, which upholds the constitutionality of foreign intelligence surveillance conducted under the Protect America Act of 2007."