Breaking: FISA court will rule warrantless surveillance legal

posted at 1:10 pm on January 15, 2009 by Ed Morrissey
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Hmmm.  This should really enrage the Left.  The FISA court will make public a ruling that validates George Bush’s warrantless surveillance on international communications, including those with one terminus in the United States (via JWF):

A federal intelligence court, in a rare public opinion, is expected to issue a major ruling validating the power of the president and Congress to wiretap international phone calls and intercept e-mail messages without a court order, even when Americans’ private communications may be involved, according to a person with knowledge of the opinion.

The court decision, made in December by the Foreign Intelligence Surveillance Court of Review, is expected to be disclosed as early as Thursday in an unclassified, redacted form, the person said. The review court has issued only two other rulings in its 30-year history.

The decision marks the first time since the disclosure of the National Security Agency’s warrantless eavesdropping program three years ago that an appellate court has addressed the constitutionality of the federal government’s wiretapping powers. In validating the government’s wide authority to collect foreign intelligence, it may offer legal credence to the Bush administration’s repeated assertions that the president has constitutional authority to act without specific court approval in ordering national security eavesdropping.

The appeals court is expected to uphold a secret ruling issued last year by the intelligence court that it oversees, known as the Foreign Intelligence Surveillance, or FISA, court. In that initial opinion, the secret court found that Congress had acted within its authority in August of 2007 when it passed a hotly debated law known as the Protect America Act, which gave the executive branch broad power to eavesdrop on international communications, according to the person familiar with the ruling.

It comes a little late, years after the New York Times exposed the national security program and made it much more difficult for the US to conduct its surveillance.  The biggest beneficiaries will be the telecommunications companies that cooperated with the NSA to protect the country.  Congress had to pass special legislation last year to clarify the FISA laws and to provide some immunity for the telecoms to keep them from being raided by lawyers intent on penalizing them for millions in nuisance lawsuits.

Ironically, though, the FISA court case originated from a telecom that didn’t want to allow the NSA access to its information.  The FISA court ruled that the executive branch had the authority under then-current FISA legislation as well as other Congressional action in the Protect America Act.  While the ruling does not directly reference the Terrorist Surveillance Program — at least according to the Times — the ruling on the scope of authority invested in the executive relates directly to that program.

Barack Obama initially opposed the TSP and the FISA update, but later switched and voted for it.  He promised to review the language once he took office, but now it appears unnecessary.  In a way, this benefits him as well, since he has both an excuse for doing nothing and the power to continue the program.

In the end, though, the biggest beneficiary should be George Bush.  He has been unfairly castigated as some sort of fascist for using the power he already had available to track terrorist communications and keep this nation safe.  Plenty of people owe him a big apology — and the New York Times and Eric Lichtblau are first in line.

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