The executive branch may conduct warrantless surveillance in the name of national security, according to a decision by the secretive Foreign Intelligence Court of Review published Thursday. The decision, handed down in August, but published in redacted form this week, blessed surveillance under the stopgap Protect America Act, which was superseded last year by the FISA Amendments Act.

Like the Foreign Intelligence Surveillance Court, which issues secret warrants for both physical searches and electronic surveillance under the FISA law, the Foreign Intelligence Court of Review seldom makes its opinions public. In an order dated January 12, however, the Court found the release of an edited, unclassified version of its August opinion to be in the public interest.

The ruling concerns a challenge to surveillance authorized by the attorney general under the PAA. Though the party raising the challenge is not named—the opinion refers only to the "petitioner"—it is likely to be either a telecom or an Internet Service Provider, in principle, however, any entity with information about a target "reasonably believed to be located outside the United States," such as a university or financial institution. Under the terms of the PAA, the attorney general is empowered to issue "authorizations" for surveillance that has traditionally required a court order issued by an independent magistrate.

For the first time, the Court explicitly asserted an exception to the Fourth Amendment's warrant requirement for foreign intelligence surveillance meant to serve a national security purpose. While federal courts have previously held that no such exception exists for domestic national security surveillance, the courts had left a conspicuous lacuna with respect to foreign intelligence surveillance. The FISC does not, however, devote much space in the published opinion to explaining the salient differences between these types of surveillance—a strange omission given that both the PAA and FISA Amendments Act were designed to permit the interception of foreign targets' communications with Americans.

Though the anonymous petitioner had sought to mount a "facial" challenge to the PAA—that is, they had hoped to show the law to be intrinsically unconstitutional—the Court opted to consider only an "as applied" challenge, limiting itself to the facts of the specific orders issued. As the opinion shows, this had the effect of saddling the petitioner with a rather high burden of showing actual abuse—as opposed to the mere potential for the sort of abuse that has been historically endemic when intelligence agencies operated without judicial checks.

Dismissing such structural concerns, the Court observes that the petitioner offered "no evidence of any actual harm, any egregious risk of error, or any broad potential for abuse in the circumstances of the instant case." Citing the safeguards and minimization procedures contained in the PAA and Executive order 12333—as well as other procedures whose very description was redacted—the Court found that there was "constitutionally sufficient compensation for any encroachments," allowing the surveillance to meet the Fourth Amendment requirement of "reasonableness," even in the absence of a judicial warrant.

These procedures included a determination by the attorney general that there was probable cause to believe the target of surveillance was an agent of a foreign power, supported by a "two-to-three page submission articulating the facts" provided by the National Security Agency, and supplemented by an oral briefing. Taken together, these procedures were "analogous to and in conformity with the particularity showing" required by Courts' previous holdings.

"Little more than a lament..."

Concerns about abuse, the court held, amounted to "little more than a lament about the risk that government officials will not operate in good faith," a risk present even when a warrant is issued. In effect, the court reasoned that since judges generally presume that law enforcement officials are being diligent and truthful in their applications for a warrant, the same presumption should be granted when intelligence agencies conduct surveillance without a warrant. Whether a radically different context of oversight might merit a different level of deference gets glossed.

The court seemed similarly unconcerned with the danger that innocent persons' information would be swept up in surveillance, calling such worries "overblown" in the light of "minimization" procedures designed to cull away any such "incidental" collections. "The government assures us that it does not maintain a database of incidentally collected information from non-targeted United States persons," the Court wrote, "and there is no evidence to the contrary."

The specific use of the term "database" there should give pause: the government has asserted that it does not keep a database of conversations of innocent Americans, not that it doesn't keep the conversations. This may sound like hairsplitting, unless you realize that "minimization" of FISA intercepts has not traditionally required the deletion of the recording. Rather, a standard practice dating back to 1984—and continuing until at least 2002—has been to simply exclude the irrelevant, "minimized," portions of an intercept from the index or log maintained by an agency. In 1984, content that had not been indexed was effectively irretrievable. In 2009, thanks to advances in text and voice search technology, that is less likely to hold true.

In a 2003 case involving FISA surveillance, US v. Sattar, the record shows that "approximately 5,175 pertinent voice calls ... were not minimized" in the course of wiretaps conducted by the Federal Bureau of Investigation. But during the criminal trial against the targets of that surveillance, the FBI was faced with a legal obligation of disclosure: It had to turn over any material obtained in the course of their investigation that might be potentially exculpatory. When push came to shove, the Bureau "retrieved and disclosed to the defendants over 85,000 audio files… obtained through FISA surveillance," or more than 16 times as much material as had been officially kept in a "database."

Perhaps most intriguing—or, depending on your point of view, maddening—is a summary of a redacted portion of the opinion dealing with a "specific privacy concern that could possibly arise under the directives." Details of this specific concern have, alas, been excised, apart from the assurance that "no issue falling within this description has arisen to date," and that "there are safeguards in place that may meet the reasonableness standard" to cover the problem in question.

The ruling, it should be noted, does not serve to validate the program of warrantless NSA wiretaps authorized by President Bush in the wake of the 9/11 attacks, which apart from Fourth Amendment concerns clearly contravened that Foreign Intelligence Surveillance Act as it existed at the time. Neither is it clear whether that program contained any of the safeguards the Court relied on to find the surveillance, in this case, "reasonable."

Given that the Protect America Act featured even fewer restrictions and checks than the now-operative FISA Amendments Act, however, the ruling may bode ill for a lawsuit filed in September by the Electronic Frontier Foundation, which challenges the constitutionality of the more recent statute.