“My reaction?  Duh!” 

Those were the words of Central Intelligence Agency Director Michael Hayden, when asked for his reaction to a federal appeals court decision upholding telecommunications companies’ right to assist federal terrorist-surveillance efforts. 

Director Hayden’s cathartic response succinctly captures the reaction of any reasonable American to the ruling, which protects telecommunications companies against a trial lawyer feeding frenzy and affirms our nation’s ability to eavesdrop on overseas terrorism suspects.  The Department of Justice’s official response that it was “pleased with this important ruling” was much more understated, but also spoke volumes. 

The Foreign Intelligence Surveillance Court of Review’s August decision, which was just announced last week, stems from an appeal challenging the legality of a 2007 government request to surveil certain suspects’ communications.  Although it arose under the Protect America Act, which was a temporary law subsequently replaced by amendments to the Foreign Intelligence Surveillance Act (FISA), and its details remain classified, it obviously serves as critical precedent. 

For years, plaintiffs’ lawyers and the worldwide grievance industry have claimed that such surveillance somehow violates the United States Constitution, despite the fact that it involves non-citizens situated outside the nation’s borders.  According to them, intelligence authorities must painstakingly obtain judicial warrants pursuant to the 1978 Foreign Intelligence Surveillance Act (FISA) before snooping into suspected terrorists’ conversations.  Following that argument, they salivated at the prospect of endless lawsuits against deep-pocketed telecom companies and millions of dollars in class-action settlements that would follow. 

Moreover, the angry left has denounced counterterrorist surveillance as nothing more than an Orwellian tactic by President Bush to persecute innocent Americans and shred the Constitution. 

Unfortunately for them, the court created under FISA itself has now spoiled their party. 

The decision centered upon analysis of the Fourth Amendment to the Constitution, which in pertinent part protects the right of citizens against “unreasonable” searches and seizures, rather than searches and seizures entirely.  Accordingly, years of precedent logically recognize numerous exceptions to the warrant requirement, such as when police are in hot pursuit, the evidence is in plain public view or most notably, searches occurring in foreign countries involving non-citizens. 

Furthermore, longstanding Supreme Court precedent grants wide latitude to Presidents and the executive branch under Article II of the Constitution.  For instance, a 1980 decision determined that “the Executive need not always obtain a warrant for foreign intelligence surveillance,” and the 2002 ruling in In re Sealed Case held that Presidents have “inherent authority to conduct warrantless searches to obtain foreign intelligence information.”  That latter decision also held that FISA “cannot encroach on the President’s constitutional power.”  This stands to reason, because the Constitution grants Presidents, not the courts, the power to conduct military affairs and foreign affairs. 

Moreover, the telecom companies had been assured by the Department of Justice that their assistance was legal, and that such assistance was absolutely necessary to identify foreign terrorists and prevent further attacks upon the United States.  Therefore, it would be unfair to hold these enterprises liable when they relied in good faith upon Justice Department assurances of the program’s legality. 

On these bases, the appeals court correctly recognized the Fourth Amendment exception where this sort of electronic surveillance is employed to acquire foreign intelligence. 

Plaintiffs’ lawyers, who always seemed more interested in wrenching settlement dollars from telecom companies and protecting suspected foreign terrorists than in allowing reasonable attempts to safeguard Americans from another 9/11, reacted with predictable defiance.  According to the American Civil Liberties Union (ACLU), for instance, “they won the battle, but they may ultimately lose the war.” 

Poor choice of words, given the grave nature of the subject matter. 

Nevertheless, these lawyers contend that they’ll target future surveillance requests each time they occur.  Wonderful. 

Fortunately, the government’s victory in this case provides important assistance in fighting the slew of lawsuits targeting its counterterrorism efforts.  The trial lawyers aren’t going away anytime soon, but this ruling constitutes a very welcome victory in the fight against international terrorism and the parasitic litigation machine.