Yesterday’s news that a federal court had affirmed the constitutionality of some of the Bush administration’s warrantless wiretapping activities rankled civil libertarians, to be sure. But at least one prominent legal scholar is offering up a few reasons for them to breath easier.
The five-month-old opinion, released by the Foreign intelligence Surveillance Court of Review on Thursday, found that under the Protect America Act of 2007 the government could legally tap international phone calls without violating the Fourth Amendment’s ban on unreasonable searches and seizures. The act was a piece of stop-gap legislation that sunset the year it was passed, but not before an unidentified telecommunications company challenged its constitutionality, after the Bush administration asked the company to help spy on its customers.
When Congress amended the Foreign Intelligence Surveillance Act in 2008, lawmakers borrowed heavily from the Protect America Act’s blueprint. In that sense, yesterday’s opinion may be relevant to today’s legal framework, says Jonathan Turley, professor of constitutional law at George Washington University. But he stressed that it doesn’t give the Bush administration a free pass.
“Much of the controversy with regard to potential crimes committed by the Bush administration focuses on the use of warrantless surveillance before the congressional enactment,” Turley says. “This opinion does not have bearing on that action. Indeed, this opinion stresses the congressional authorization.”
Turley also expresses doubts that other courts will necessarily take the opinion seriously. “This is one court of appeals, and indeed it’s a court of appeals that has a rather controversial pedigree,” he says. “This was a court that was designed to avoid adversarial process.”
On the other hand, no other court has weighed in on the issue as thoroughly, says David Rivkin, a partner at Baker Hostetler who served in the Justice Department under the first George Bush and Ronald Reagan. Right now, he says, this is the closest thing to precedent.
“This opinion is at the very least as persuasive as the opinion of any circuit court on this issue,” says Rivkin, a vocal proponent of the Bush administration’s wiretapping program. “It’s not the Supreme Court, but it’s good enough. What does the other side have on its side?”
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