FISC Judge Vinson’s refusal to renew Judge Howard’s order for warrantless surveillance

On April 3, 2007, Judge Roger Vinson refused to renew the warrant that Judge Howard had issued for communications to and from foreign email address and phone numbers. Order and Memorandum Opinion, In Re [Redacted], Docket Number [Redacted]. In an extensive opinion, Judge Vinson noted that the government’s flexible interpretation of FISA would allow either a particular telephone number or email address or a telecommunications access point to count as the “facility” that a judge must find probable cause to believe a foreign power was using or about to use. According to the judge, however, the “plain meaning” of “facility” under FISA is a particular telephone number or email address. Id. at 12. “[E]ven if the statutory language were as elastic as the government contends,” Judge Vinson reasoned that legislative history showed that Congress intended an email address or phone number to be the “facility” for which a FISC judge must make probable cause findings. “FISA’s legislative history … makes clear that the purpose of pre-surveillance judicial review is to protect the fourth amendment rights of U.S. persons.” Id. at 13-14. A judge could not possibly restrain executive branch discretion to target individuals by making “a highly abstract and generalized probable cause finding” that a foreign power’s communications might be among those passing through a telecommunications access point. Id. at 14. In addition, the government’s proposed minimization procedures would do nothing to provide an external “check on what or whose communications are intercepted” by the executive. “[U]nder the proposed procedures, NSA may initiate surveillance of a foreign phone number or e-mail address unilaterally; express judicial review is not required, even after the fact.” Id. at 18.

Notwithstanding his forthright proclamation of the Fourth Amendment roots of FISA, Judge Vinson “recognize[d] that the government maintains that the President may have ‘constitutional or statutory authority to conduct the electronic surveillance detailed herein without Court authorization.’ Nothing in this order and opinion is intended to address the existence or scope of such authority, or this Court’s jurisdiction over such matters.” Id. at 20.

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