Intelligence Court Upholds Government’s Warrantless Surveillance Intercept Power

The Foreign Intelligence Surveillance Court of Review has made public its decision, reached last August, that the federal government has the power to wiretap international phone calls and intercept e-mail messages without a specific court order, even when Americans’ private communications may be involved. The case arose from a challenge to this power brought by a telecommunications company whose identity has not been disclosed. The company had refused to turn over its relevant records, claiming that the president lacked constitutional authority to obtain them without a court order.

The “FISA court” issued a secret ruling that Congress acted within its authority when it passed the Protect America Act, which gave the executive branch broad power to eavesdrop on international communications. That ruling, it is now being reported, was upheld upon appellate review.

In his New York Times story on the case, Eric Lichtblau, who disclosed the existence of the warrantless surveillance program, sniffs that the court’s ruling “may offer legal credence to the Bush administration’s repeated assertions that the president has the power to act without specific court approval in ordering national security eavesdropping that may involve Americans.” (emphasis added) I guess so. Rulings by appellate courts, by definition, give “legal credence” to the positions they embrace. And here we’re talking about a court with special expertise in the subject matter that is ruling on an essentially novel issue.

The court’s ruling may not be the final word, and it certainly doesn’t end the discussion. But Lichtblau’s “may offer legal credence” locution is embarrassing, and stands in sharp contrast to the familiar “in a crushing blow to the Bush administration. . .” type of language the MSM serves up when these kinds of cases go the other way.

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