{"id":2873,"date":"2009-03-14T03:51:24","date_gmt":"2009-01-17T15:48:32","guid":{"rendered":""},"modified":"-0001-11-30T00:00:00","modified_gmt":"2009-01-17T02:16:56","slug":"en-US","status":"publish","type":"post","link":"http:\/\/fourthamendment.com\/?p=2873","title":{"rendered":"FISCR: Wiretapping without warrant for calls outside US satisfies Fourth Amendment"},"content":{"rendered":"

There is a foreign intelligence surveillance exception to the Fourth Amendment for surveillance conducted on calls outside the United States involving suspected terrorists. In re Directives [Redacted] Pursuant to Section 105B of Foreign Intelligence Surveillance Act<\/a>, 2008 U.S. App. LEXIS 27417, 2008 WL 5501436 (Foreign Int. Surv. Ct. Rev. August 22, 2008), ordered released January 12, 2009<\/a>:<\/p>\n

2. The Foreign Intelligence Exception.<\/strong> The recurrent theme permeating the petitioner’s arguments is the notion that there is no foreign intelligence exception to the Fourth Amendment’s Warrant Clause. The FISC rejected this notion, positing that our decision in In re Sealed Case confirmed the existence of a foreign intelligence exception to the warrant requirement.<\/p>\n

While the Sealed Case court avoided an express holding that a foreign intelligence exception exists by assuming arguendo that whether or not the warrant requirements were met, the statute could survive on reasonableness grounds, see 310 F.3d at 741-42, we believe that the FISC’s reading of that decision is plausible.<\/p>\n

The petitioner argues correctly that the Supreme Court has not explicitly recognized such an exception; indeed, the Court reserved that question in United States v. United States District Court (Keith), 407 U.S. 297, 308-09, 92 S.Ct. 2125, 32 L.Ed.2d 752 (1972). But the Court has recognized a comparable exception, outside the foreign intelligence context, in so-called \u201cspecial needs\u201d cases. In those cases, the Court excused compliance with the Warrant Clause when the purpose behind the governmental action went beyond routine law enforcement and insisting upon a warrant would materially interfere with the accomplishment of that purpose. See, e.g., Vernonia Sch. Dist. 47J v. Acton, 515 U.S. 646, 653, 115 S.Ct. 2386, 132 L.Ed.2d 564 (1995) (upholding drug testing of high-school athletes and explaining that the exception to the warrant requirement applied \u201cwhen special needs, beyond the normal need for law enforcement, make the warrant and probable-cause requirement[s] impracticable\u201d (quoting Griffin v. Wisconsin, 483 U.S. 868, 873, 107 S.Ct. 3164, 97 L.Ed.2d 709 (1987))); Skinner v. Ry. Labor Execs. Ass’n, 489 U.S. 602, 620, 109 S.Ct. 1402, 103 L.Ed.2d 639 (1989) (upholding regulations instituting drug and alcohol testing of railroad workers for safety reasons); cf. Terry v. Ohio, 392 U.S. 1, 23-24, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968) (upholding pat-frisk for weapons to protect officer safety during investigatory stop).<\/p>\n

The question, then, is whether the reasoning of the special needs cases applies by analogy to justify a foreign intelligence exception to the warrant requirement for surveillance undertaken for national security purposes and directed at a foreign power or an agent of a foreign power reasonably believed to be located outside the United States. Applying principles derived from the special needs cases, we conclude that this type of foreign intelligence surveillance possesses characteristics that qualify it for such an exception.<\/p>\n

For one thing, the purpose behind the surveillances ordered pursuant to the directives goes well beyond any garden-variety law enforcement objective. It involves the acquisition from overseas foreign agents of foreign intelligence to help protect national security. Moreover, this is the sort of situation in which the government’s interest is particularly intense.<\/p>\n

The petitioner has a fallback position. Even if there is a narrow foreign intelligence exception, it asseverates, a definition of that exception should require the foreign intelligence purpose to be the primary purpose of the surveillance. For that proposition, it cites the Fourth Circuit’s decision in United States v. Truong Dinh Hung, 629 F.2d 908, 915 (4th Cir.1980). That dog will not hunt.<\/p>\n

This court previously has upheld as reasonable under the Fourth Amendment the Patriot Act’s substitution of \u201ca significant purpose\u201d for the talismanic phrase \u201cprimary purpose.\u201d In re Sealed Case, 310 F.3d at 742-45. As we explained there, the Fourth Circuit’s \u201cprimary purpose\u201d language-from which the pre-Patriot Act interpretation of \u201cpurpose\u201d derived-drew an \u201cunstable, unrealistic, and confusing\u201d line between foreign intelligence purposes and criminal investigation purposes. Id. at 743. A surveillance with a foreign intelligence purpose often will have some ancillary criminal-law purpose. See id. The prevention or apprehension of terrorism suspects, for instance, is inextricably intertwined with the national security concerns that are at the core of foreign intelligence collection. See id. In our view the more appropriate consideration is the programmatic purpose of the surveillances and whether-as in the special needs cases-that programmatic purpose involves some legitimate objective beyond ordinary crime control. Id. at 745-46.<\/p>\n

Under this analysis, the surveillances authorized by the directives easily pass muster. Their stated purpose centers on garnering foreign intelligence. There is no indication that the collections of information are primarily related to ordinary criminal-law enforcement purposes. Without something more than a purely speculative set of imaginings, we cannot infer that the purpose of the directives (and, thus, of the surveillances) is other than their stated purpose. See, e.g., United States v. Chem. Found., Inc., 272 U.S. 1, 14-15, 47 S.Ct. 1, 71 L.Ed. 131 (1926) (\u201cThe presumption of regularity supports the official acts of public officers, and, in the absence of clear evidence to the contrary, courts presume that they have properly discharged their official duties.\u201d).<\/p>\n

. . .<\/p>\n

3. Reasonableness.<\/strong> This holding does not grant the government carte blanche: even though the foreign intelligence exception applies in a given case, governmental action intruding on individual privacy interests must comport with the Fourth Amendment’s reasonableness requirement. See United States v. Place, 462 U.S. 696, 703, 103 S.Ct. 2637, 77 L.Ed.2d 110 (1983). Thus, the question here reduces to whether the PAA, as applied through the directives, constitutes a sufficiently reasonable exercise of governmental power to satisfy the Fourth Amendment.<\/p>\n

. . . <\/p>\n

V. CONCLUSION<\/strong><\/p>\n

Our government is tasked with protecting an interest of utmost significance to the nation-the safety and security of its people. But the Constitution is the cornerstone of our freedoms, and government cannot unilaterally sacrifice constitutional rights on the altar of national security. Thus, in carrying out its national security mission, the government must simultaneously fulfill its constitutional responsibility to provide reasonable protections for the privacy of United States persons. The judiciary’s duty is to hold that delicate balance steady and true.<\/p>\n

We believe that our decision to uphold the PAA as applied in this case comports with that solemn obligation. In that regard, we caution that our decision does not constitute an endorsement of broad-based, indiscriminate executive power. Rather, 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. This is such a case.<\/p>\n

We need go no further. The decision granting the government’s motion to compel is affirmed; the petition for review is denied and dismissed; and the motion for a stay is denied as moot.<\/p><\/blockquote>\n

News stories: Washington Post<\/a>, NY Times<\/a>, LA times<\/a>.<\/p>\n","protected":false},"excerpt":{"rendered":"

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