Bench Memos

NRO’s home for judicial news and analysis.

Better Late Than Never


The Foreign Intelligence Surveillance Court of Review, in its August ruling released only yesterday, sensibly reads the Fourth Amendment as no bar to the president’s use of warrantless eavesdropping for foreign intelligence purposes.  Referring to an established body of precedents regarding “special needs” cases, the court concludes that “the reasoning of the special needs cases applies by analogy to justify a foreign intelligence exception to the warrant requirement for surveillance undertaken for national security purposes and directed at a foreign power or an agent of a foreign power reasonably believed to be located outside the United States.”

I’m not sure why this (heavily redacted) opinion was held secret from August until the present.  But it is surely a vindication of George W. Bush.  And of the CIA’s General Michael Hayden–and of Adam J. White, who wrote about Hayden’s views for NRO in 2006, and whose reasoning presaged that of the FIS Court of Review.


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