May 6, 2009 | Commentary on Legal Issues, National Security and Defense

An Intelligent Decision

"Duh."

That was former NSA Administrator Michael Hayden's apt response to the recent release of a court opinion upholding government surveillance under the Protect America Act. The PAA, a temporary expansion of the Foreign intelligence Surveillance Act, provided statutory support for conducting warrantless wiretaps on targets "reasonably believed" to be outside the U.S., continuing a program that had begun shortly after 9/11 and is the subject of ongoing court challenges by groups like the ACLU.

The Foreign intelligence Surveillance Court of Review, in line with nearly every other court to consider the matter (as well as its 2002 Sealed Case decision), ruled that the government does not need to satisfy the Fourth Amendment's Warrant Clause when it is conducting foreign intelligence-gathering.

Moreover, the court used its top-secret clearance to dig deep into the workings of the controversial program, finding that "the government has instituted several layers of serviceable safeguards to protect individuals against unwarranted harms and to minimize incidental intrusions." The opinion, even in redacted form, takes 10 pages to describe the myriad of protections in place for individual privacy interests.

The court's decision to uphold the PAA was not surprising, considering the precedents. A one-sentence version of the opinion would read simply: "What we said in Sealed Case--we really meant it."

And yet some responded with plain apoplexy. "The government should not be able to nullify Fourth Amendmenth rights simply by invoking national security," screamed the ACLU in a press release, ignoring the court's careful analysis of the PAA's reasonableness under the Fourth Amendment.

But too often screaming has been the dominant mode of discourse in the foreign surveillance "debate." Supporters argue national security, while opponents argue privacy (and usually gloss over crucial details of implementation). Rarely is there any meeting of the minds or any attempt to reach a consensus.

The FISCR decision, however, shows that there is a third way. The court attempts, and largely succeeds, in devising the formula that accommodates both the federal government's paramount duty to protect the country and the safeguards required to protect citizens' privacy, thereby sidestepping the so-called dichotomy between security and civil liberties.

What the court recognizes--and groups like the ACLU do not--is that the two need not be in conflict. Well-tailored policies to improve security rarely intrude on privacy because they focus efforts on real threats, not imaginary ones. Thus, the court puts great weight on the number and particularity of certifications made by high-level officials the PAA required before surveillance could commence, as well as other procedural requirements to ensure proper targeting and discarding of "accidental captures." (The FISA Amendments Act, which replaced the PAA, imposes even tougher requirements.)

Good procedure, concluded the court, prevents bad substantive outcomes--the kind that the Fourth Amendment protects against. It's a reasonable view--pretty much identical to the rationale for the warrant requirement--and one that is flexible enough to accommodate foreign intelligence needs and protect against unwarranted intrusions. The logic of the court's jurisprudence is also straightforward: Since the intelligence gathering procedures were hammered out by the political branches, it is incumbent upon the courts to give some deference to those decisions unless clearly in the wrong.

The error of many critics is that they ignore procedure in favor of horror stories, usually hypothetical ones. Indeed, the court slams the plaintiff for trotting out a "parade of horribles" while presenting "no evidence of any actual harm, any egregious risk of error, or any broad potential for abuse."

That's a fairly common litigation strategy in cases challenging the government's foreign surveillance operations, most brought by civil liberties groups. Among them: an ongoing multi-headed challenge to the Bush Administration's pre-PAA foreign surveillance operations, which Congress belatedly blessed in legislation following years of classified briefings. That case, more than any other, threatens to upset the nation's capability to carry out the sort of smart intelligence programs that were at issue in the FISCR case.

But it could, and should, go the other way, if the judge adopts that decision's third-way approach and gives due weight to the political process that resulted in the FISA Amendments Act and the current state of surveillance law. That result, like the FISCR decision, would be reasonable and (legally speaking) somewhat obvious.

Andrew M. Grossman is Senior Legal Policy Analyst in the Center for Legal and Judicial Studies at The Heritage Foundation.

About the Author

Andrew M. Grossman Visiting Fellow
Edwin Meese III Center for Legal and Judicial Studies

First appeared in Homeland Defense Journal