Some Comments on the FISA Court of Review Decision:
I was on a plane most of the day, delaying my promised blogging on the new FISA Court of Review case
on foreign intelligence surveillance. Here are a few thoughts after reading the opinion.
1. First, keep in mind that the opinion has only a very slight connection to the legal issues that we debated ad infinitum back in 2005-2006 on the legality of the Terrorist Surveillance Program. As you may recall, the major legal problem with the TSP as put in place in 2001 was statutory, not constitutional: The program appeared to violate the FISA statute. FISA was later amended to allow a modified version of the TSP, however, and the new opinion is a Fourth Amendment challenge to the procedures permitted by the amendment, the 2007 Protect America Act. So this opinion doesn't say anything at all about whether the TSP violated FISA.
2. From the standpoint of precedent, it's a bit hard to know what to make of the case given that the facts are classified. I spent a lot of time trying to guess what the redacted parts might be, but didn't get very far.
3. As for pure issues of law, I was struck by the court's careful reasonableness analysis. This was not a blank check by any means, and instead seemed to hold DOJ to a lot of procedures that it follows but that aren't written into the statute (effectively writing them in for the future). Of course, we don't know the details, as they are classified. But the Fourth Amendment was very much in play here: As I said, this was not a blank check.
4. I was particularly intrigued by the "parting shot" (?) at the end in which the court tasks the Executive branch with a duty to notify the petitioner if what the court describes as "a specific privacy concern" arises. The specific concern might be a specific kind of overcollection problem; perhaps the petitioner was pointing out the possibility of overcollection given the surveilance tools being used. Whatever the specific problem, it's notable that the court didn't dismiss the hypothetical concern entirely: Rather, it ordered the government to disclose any evidence of that in the future if it occurs, which could then lead to a new challenge.