January 15, 2009

CONTACT: (212) 549-2666; media@aclu.org

NEW YORK – The American Civil Liberties Union today responded to an opinion released by a secret intelligence appeals court upholding the constitutionality of directives issued under the Protect America Act. The directives from the executive branch required a telecommunications company to assist the government in warrantless surveillance of its customers.

The opinion by the Foreign Intelligence Surveillance Court of Review is dated August 22, 2008, but was not made public until today.

The following can be attributed to Jameel Jaffer, Director of the ACLU National Security Project:

"The Court of Review was wrong to hold that the warrant requirement doesn't apply in foreign intelligence investigations. When the government monitors Americans' phone calls and emails, it should have to justify its actions to a court, and it should have to do so on a case-by-case basis. The government should not be able to nullify Fourth Amendment rights simply by invoking national security.

The Court of Review was correct, though, to find that probable cause is a key constitutional requirement. Notably, the FISA Amendments Act, which Congress enacted after the Protect America Act expired, lacks that and other constitutionally significant safeguards."

The newly released Court of Review opinion (dated August 22, 2008) is available here: www.fas.org/irp/agency/doj/fisa/fiscr082208.pdf

The January 12, 2009 order directing release of the opinion is posted here: www.fas.org/irp/agency/doj/fisa/fiscr011209.pdf

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