ACLU v. NSA and the Foreign Intelligence Surveillance Act

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2 Responses

  1. Dissent says:

    Thanks for two thoughtful posts on the court opinion, Dan, and for Andy’s comment to the first post.

    One of the (many) things that troubled me about the Judge Batchelder’s opinion is that she seemed to accept, without question, the unsworn and unexamined statements of the AG or others that the warrantless surveillance was only used where there is ‘a reasonable basis to conclude that one party to the communication is a member of al Qaeda, affiliated with al Qaeda, or a member of an organization affiliated with al Qaeda, or working in support of al Qaeda.’

    If a judge is going to accept such unsworn and unexamined claims as factual, then why bother with any warrants or judicial review of applications to surveill? Given the documented history of abuses of surveillance by our government, her acceptance of their statement was troubling.

  2. MJG says:

    Dissent: One reason is that this does not make a big difference for the analysis, for the primary reason that all the plaintiffs claim they were speaking with precisely these kinds of people.

    Further, “probably cause” for a FISA warrant is only probable cause that the person is communicating with a foreign power or agent, which includes, by definition, terrorists.

    So it just came through as a kind of stipulated fact. None of the plaintiffs were claiming to be averages Joes who had their normal, day-to-day conversations surveilled under the program. All claimed to actually be talking to al Qaeda types.