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FISA court defends NSA surveillance decisions

The Foreign Intelligence Surveillance Court says National Security Agency practices aren't unconstitutional because numbers dialed aren't private.

September 17, 2013|By David G. Savage

WASHINGTON — The secretive federal court that oversees government surveillance released a recent opinion Tuesday that explains and defends its decisions giving the National Security Agency broad power to collect the phone records of all Americans.

At issue were decisions going back to 2006 that permitted the agency to order phone companies to turn over the dialing records of calls made in this country. This "metadata" did not include the names of the callers, nor did it include the content of the calls.

Civil libertarians and many others objected this summer when documents leaked by intelligence contractor Edward Snowden revealed this mass surveillance policy.

Writing in an Aug. 29 opinion, Judge Claire Eagan said the Constitution's protection against "unreasonable searches" was not triggered by such searches because dialing records — unlike the words spoken on a phone call — are not private. She cited a 1979 Supreme Court ruling that made clear police can obtain phone records without a search warrant.

And, she said, Congress said the government could demand various business records that were "relevant" to a terrorism investigation, and the mass of phone records were potentially useful for tracking suspected terrorists here or abroad.

"The concept of relevance here is in fact broad and amounts to a relatively low standard," said Eagan, a district judge from Oklahoma who sits part time on the 11-member Foreign Intelligence Surveillance Court.

The judge also said members of Congress had little reason to express surprise that the NSA was secretly collecting phone data under a provision in the Patriot Act. In 2011, the "executive branch and relevant congressional committees worked together to ensure that each member of Congress knew or had the opportunity to know how Section 215 [of the Patriot Act] was being implemented under this court's orders," she wrote in the opinion.

Chief Judge Reggie Walton said last week that the special court would release unclassified versions of some of its opinions to explain the legal basis for its rulings.

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