[Infowarrior] - FISA Court Rules Wiretapping Program Legal

[Richard Forno]

January 16, 2009
Intelligence Court Rules Wiretapping Program Legal
By ERIC LICHTBLAU
http://www.nytimes.com/2009/01/16/washington/16fisa.html?_r=1&hp=&pagewanted=print

WASHINGTON — A federal intelligence court, in a rare public opinion,  
is expected to issue a major ruling validating the power of the  
president and Congress to wiretap international phone calls and  
intercept e-mail messages without a court order, even when Americans’  
private communications may be involved.

The court decision is expected to be disclosed as early as Thursday in  
an unclassified, redacted form. It was made in December by the Foreign  
Intelligence Surveillance Court of Review, which has issued only two  
prior rulings in its 30-year history.

The decision marks the first time since the disclosure of the National  
Security Agency’s warrantless eavesdropping program three years ago  
that an appellate court has addressed the constitutionality of the  
federal government’s wiretapping powers. In validating the  
government’s wide authority to collect foreign intelligence, it may  
offer legal credence to the Bush administration’s repeated assertions  
that the president has constitutional authority to act without  
specific court approval in ordering national security eavesdropping.

The appeals court is expected to uphold a secret ruling issued last  
year by the intelligence court that it oversees, known as the Foreign  
Intelligence Surveillance, or FISA, court. In that initial opinion,  
the secret court found that Congress had acted within its authority in  
August of 2007 when it passed a hotly debated law known as the Protect  
America Act, which gave the executive branch broad power to eavesdrop  
on international communications, according to someone familiar with  
the ruling.

The Justice Department declined to comment on the matter; so did a  
spokesman for the FISA and appeals courts.

The court ruling grew out of a previously undisclosed challenge from a  
telecommunications provider, which questioned the constitutional  
authority of the executive branch in ordering it to capture and turn  
over international communications without court authority, according  
to the person with knowledge of the opinion.

The telecommunications company, which was not identified, apparently  
refused to comply with the order and instead challenged the legal  
basis of the order under the 2007 law in a claim before the FISA court.

The FISA court rejected the telecommunication companies’ challenge. It  
found that the Protect America Act did not violate the Constitution  
because the Fourth Amendment, which prohibits unreasonable searches  
and seizures, contained an exception for the collection of foreign  
intelligence information, according to the person familiar with theon.

The opinion is not expected to directly rule on the legality of the  
once-secret operation authorized by President Bush between October  
2001 and early 2007, which allowed the National Security Agency to  
eavesdrop on the international communications of Americans suspected  
of ties to terrorists. The disclosure of the program’s existence in  
The New York Times in December 2005 set off a national debate on  
wiretapping, privacy and the limits of presidential power. Critics  
charged that Mr. Bush had violated a 1978 law requiring that the  
government obtain a court order to listen in on Americans’  
communications.

Still, the new ruling is expected to have broad implications for  
federal wiretapping law, because it is the first time that any appeals  
court has ruled on the constitutional question of the president’s  
wiretapping power.

It could also influence a number of court challenges now pending in  
federal court in California against telecommunications companies that  
took part in the N.S.A. program. Last year, Congress approved legal  
immunity against lawsuits for the telecommunications companies, but a  
federal judge has yet to decide whether the lawsuits should be thrown  
out.

The Protect America Act was a temporary, six-month measure that gave  
the president the authority to collect international phone calls and e- 
mail messages in large batches in search of possible terrorist  
connections without getting individual warrants. The international  
communications of Americans could be collected, so long as the target  
of the wiretapping operations was outside the United States.

The law drew strong objections from congressional Democrats, who  
blocked its renewal in early 2008 despite repeated warnings from  
President Bush that national security would be compromised.  
Ultimately, Congress approved a plan last June that authorized the  
same basic framework for international eavesdropping — along with the  
long-sought immunity for the phone companies — but added some  
restrictions.

Barack Obama, then a United States senator, was highly critical of the  
presidential wiretapping power claimed by Mr. Bush, and threatened to  
filibuster the final bill. But he ultimately voted for it, angering  
some of his liberal supporters. His administration is expected to  
examine possible changes in wiretapping law and operations, a review  
that will probably be affected by the findings of the FISA appeals  
court.