oday backing the government's authority to intercept international phone conversations and e-mails without a judicial warrant if the principal purpose is to collect foreign intelligence, including communications involving Americans.
The ruling came in response to the claims of an unnamed telecommunications company that the government in 2007 improperly demanded information on its clients in violation of constitutional protections against unreasonable search and seizure. The company has been complying with the demand while the case was pending.
In its opinion, a three-judge panel of the U.S. Foreign Intelligence Surveillance Court of Review ruled that national security interests outweighed privacy rights of those who might be targeted, affirming what amounts to an exception to the Constitution's Fourth Amendment for cases that involve what the panel called government interests "of the highest order of magnitude."
The opinion, written by the court's chief judge, Bruce M. Selya, said the government had enacted appropriate protections and restrictions on gathering such intelligence. "Our decision recognizes that where the government has instituted 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," Selya wrote in the 29-page opinion.
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He added that requiring a warrant in such cases would likely "hinder the government's ability to collect time-sensitive information and, thus, would impede the vital national security interests that are at stake."
Although the specific case involves a law that has since been amended, the ruling essentially supports the Bush administration's long-standing claim that foreign intelligence information can be collected inside the United States without court orders. The opinion focused specifically on provisions of the "stopgap" Protect America Act passed by Congress in 2007 that authorized the government to conduct warrantless surveillance in national security matters on people, including U.S. citizens, "reasonably believed" to be outside the United States.
The government was permitted to order telecommunications companies to help them gather such information under certain conditions. Those included taking reasonable steps to ensure the person was outside the United States and that the main purpose of the surveillance was to obtain foreign intelligence information.
The government was also required to issue a written certification, with an affidavit from top national security officials, ensuring such conditions had been met. That law was repealed by Congress in July and more restrictions were put in place.
The court opinion drew heavily from secret pleadings by the government and the telecommunications company. It said the government approached the company in 2007 with a certification to conduct foreign surveillance. But the "government's efforts did not impress (the company), which refused to comply with the directives" at the outset, Selya wrote.
The government then asked U.S. District Judge Reggie B. Walton, serving on the secret Foreign Surveillance Intelligence Court, to order the company to comply. Walton did. The company appealed but began to help the government under threat of a contempt order, Selya wrote.
The company argued that the law was unconstitutional because it did not require the government to obtain a court's warrant, as the Fourth Amendment ordinarily requires for government searches and seizures. The company said further that even if an exemption existed for foreign intelligence operations, the government's demands were "unreasonable" because the collection of such information might -- under the law -- merely be a "significant" purpose of the order, rather than its "primary" purpose.
The appeals court struck down both arguments. "The prevention or apprehension of terrorism suspects, for instance, is inextricably intertwined with national security concerns that are at the core of foreign intelligence collection," the judge wrote. Selya added that the surveillance in this case "goes well-beyond any garden-variety law enforcement objective" and "this is the sort of situation in which the government's interest is particularly intense."
