May 6, 2009
By Andrew M. Grossman
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
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
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 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
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
Grossman is Senior Legal Policy Analyst in the Center for
Legal and Judicial Studies at The Heritage Foundation.
First appeared in Homeland Defense Journal
"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.
Protect America Initiative of the Leadership for America Campaign
Andrew M. Grossman
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