Court's Ruling Has No Impact on Surveillance Allegedly Conducted Under the Terrorist Surveillance Program

On Thursday, Jan. 15, 2009, the Foreign Intelligence Surveillance Court of Review ("FISCR") released In re: Directives Pursuant to Section 105B of the Foreign Intelligence Surveillance Act, which appears to be only the second opinion the court has ever published. In it, the Court addressed a challenge to the constitutionality of the Protect America Act ("PAA") brought by a communications provider that had received a directive requiring it to conduct surveillance.

In a 27-page, partially redacted opinion, the Court rejected the provider's challenge to the surveillance under the Fourth Amendment, holding that the PAA's authorization of warrantless searches of individuals reasonably believed to be located abroad, even if U.S. persons, did not violate the Fourth Amendment. The Court's reasoning appears to be two-fold. First, because there is a foreign intelligence exception to the warrant requirement of the Fourth Amendment, prior judicial review is not required as a matter of law. Second, because the government's pre-surveillance procedures (as indicated in the directives that were issued and the classified certifications filed with the court) provided "serviceable safeguards," the surveillance met the Fourth Amendment requirement of reasonableness, especially given the compelling national security interest in the requested surveillance.

This judicial opinion will certainly be the subject of lengthy scholarly analysis, but two important points are immediately apparent. First, even though the PAA is no longer in force, the Court's decision provides a solid basis for finding that the FISA Amendments Act of 2008, which contains greater protections for U.S. citizens, is also constitutional. Second, the decision has no impact whatsoever on the question of whether any warrantless surveillance allegedly conducted under President Bush's warrantless surveillance program--known as the Terrorist Surveillance Program ("TSP")--was constitutional.

As to the specifics of the arguments, it appears that the provider's challenge was based on: (1) the PAA's lack of a particularity requirement; (2) the absence of a prior judicial review requirement for determining probable cause that a target is an agent of a foreign power; (3) the lack of a requirement that the government needs to first establish that the surveillance is necessary; and (4) the absence of a statutorily-mandated reasonable limit on the length of the surveillance. But the court rejected those arguments and found that in light of the government's compelling interest in national security, the protections that the executive branch had put into place under the directives, the certifications accompanying the directives, and the provisions of Executive Order 12333 (requiring the Attorney General to find that a U.S. person is an agent of a foreign power before authorizing surveillance) were sufficient to make the surveillance reasonable under the constitution.

The court specifically rejected the notion that the protections voluntarily adopted by the executive branch were an insufficient substitute for the judgment of a neutral and detached magistrate from the judicial branch. Essentially, the court found that where the government is operating under an exception from the warrant requirement, protections that are put into place by the executive branch can be sufficient to meet the constitutional standards where they function as "serviceable safeguards to protect individuals against unwarranted harms and to minimize incidental intrusions."

The FISA Amendments Act, while controversially extending immunity for telecoms, added protections above and beyond those in the PAA—including more explicit requirements for prior judicial review of surveillance directed at U.S. persons even when such persons are located abroad. Given this court's decision upholding the less restrictive provisions of the PAA, it is hard to see how a court could be convinced that the more protective FISA Amendments Act is unconstitutional. However, given how heavily the Court relied on the (apparently classified) executive branch procedures and safeguards found in the certifications and directives required by the PAA as support for its holding, the opinion cannot be read to suggest that any type of general warrantless surveillance without these safeguards would also be constitutional.