The decision by the Foreign Intelligence Surveillance Court of Review -- handed down in August and made public in January -- is not a blank check for presidential power, nor does it legitimize the abrogations of personal liberty that the Bush administration embraced in its so-called war on terror. In fact, the ruling vindicates Congress' decision to establish safeguards for such surveillance -- a reform that never would have occurred if President Bush had succeeded in keeping the existence of his surveillance program from the public.
It's impossible to this day to be sure of the exact details of the original Bush program -- the existence of which was revealed in 2005 by the New York Times. One component seems to have been the monitoring of telephone conversations and e-mails between U.S. residents and people abroad. The National Security Agency may also have been "data-mining” telephone records to detect patterns of suspicious contacts.
What is clear is that officials of the Justice Department -- including that unlikely civil libertarian, Atty. Gen. John Ashcroft -- believed that the administration was cutting legal corners. And although some members of Congress apparently were informed about the program, its secret nature prevented the sort of collaboration between the executive and legislative branches that produced the USA Patriot Act. Secrecy has a way of undermining democracy.
Once it was disclosed, the Bush initiative was criticized as a violation of the 1978 Foreign Intelligence Surveillance Act, which required investigators to obtain court orders to conduct surveillance of U.S. residents suspected of being agents of a foreign power. The administration argued that FISA didn't apply because, even though the communications of U.S. residentswere being caught up in an electronic dragnet, the targets of the surveillance were abroad.
Fast forward to August 2008, when the FISA appeals court ruled that a telecommunications company couldn't refuse to cooperate with government surveillance of people outside the United States. The court rejected arguments that such surveillance required a warrant and that it violated the 4th Amendment's ban on unreasonable searches and seizures.
But this wasn't a vindication of the Bush administration's original program. Rather, the court upheld a 2007 law, the Protect America Act, that was enacted by Congress in response to the furor over the administration's original program. According to the court, its judges assessed the validity of the government's conduct "through the prism" of the law.
The Protect America Act didn't require a warrant for a particular operation, but it did empower the FISA court to review procedures for surveillance to ensure that intelligence agencies weren't targeting people in this country. It also required that the attorney general regularly apprise Congress of any violations of those procedures. Last year, Congress passed yet another bill, the FISA Amendments Act of 2008, that provided additional privacy protections. That law requires the government to obtain court orders to target residents of the United States whether they are in this country or abroad.
The appeals court decision upheld an act of Congress, not Bush's original program. The law now on the books provides for greater accountability than the original program. In concluding that the surveillance at issue wasn't unreasonable, the court confined its analysis to the "defined context" of a particular case.
Finally, those who would see this decision as a sweeping endorsement of Bush's view of unchecked presidential power should ponder the penultimate paragraph of Chief Judge Bruce M. Selya's opinion. Selya writes that he and his colleagues "caution that our decision does not constitute an endorsement of broad-based, indiscriminate executive power. Rather, our decision recognizes that when 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."