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Will Unidentified Telecom Appeal Previously Secret Wiretap Ruling?

Date: 1/16/2009 8:33:47 PM

Secrecy makes it impossible for reporters to inquire whether a telecommunications company will appeal a previously undisclosed ruling rejecting a constitutional challenge to a law requiring cooperation in warrantless wiretaps.

The case could go to the U.S. Supreme Court, but reporters can’t ask the telecom if it plans an appeal since it was never identified in the redacted ruling, SCOTUSblog reports. The existence of the case wasn’t even known until this week. The decision by the Foreign Intelligence Surveillance Court of Review released the decision yesterday, although it was initially issued secretly in August. Court pleadings in the case remain sealed, the Washington Post reports.

The opinion said foreign intelligence may be gathered without a warrant under an exception to the Fourth Amendments ban on unreasonable searches, according to stories in the Wall Street Journal and the New York Times. The court said the exception applies to eavesdropping on Americans believed to be agents of a foreign power in settings outside routine law enforcement.

“We caution,” the opinion said, “that our decision does not constitute an endorsement of broad-based, indiscriminate executive power. Rather, our decision recognizes that where the government has instituted several layers of serviceable safeguards to protect individuals against unwarranted harms and to minimize incidental intrusions, the efforts to protect national security should not be frustrated by the courts. This is such a case.”

Several stories said the opinion is narrow. It applied to a temporary federal law that has been replaced with new, yet similar, legislation. It concerned a specific cooperation request directed at one telecom with additional safeguards that weren’t part of the law. And it addressed the constitutionality of a directive requiring a telecom to cooperate rather than the privacy interests of those heard on the wiretaps.

Despite the narrow ruling, the Fourth Amendment finding bolstered arguments for broader terrorism wiretap powers by recognizing that national security wiretaps don’t always require warrants, legal experts told the Times.

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