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The secret world of national security wiretaps has been transformed by the three judges on the Foreign Intelligence Surveillance Court of Review — Judges Ralph Guy Jr., Edward Leavy, and Laurence Silberman. Though it was created in 1978, the review court did not hear a single appeal until 2002. For those who care about national security, however, it was worth the wait. Before the review court’s decision, everyone — judges, officials, and civil libertarians alike — believed that the constitutionality of foreign intelligence wiretaps depended on making sure that law enforcement motives did not pollute foreign intelligence intercepts. The result was a wall between spies and cops that cost us dearly on Sept. 11, 2001. Many of the information-sharing and intelligence failures surrounding that event can be traced to the wall and the way it clotted communications between intelligence and law enforcement. Thanks to the review court, the wall has now been swept aside. The court made clear that the Foreign Intelligence Surveillance Act, as enacted, did not demand a strict separation between law enforcement and foreign intelligence. It dismissed other decisions that seemed to demand such a separation. And it ruled that the procedures for launching foreign intelligence wiretaps are “reasonable” within the meaning of the Fourth Amendment. The effects of the ruling will continue to be felt for a generation, though perhaps not entirely as the review court intended. The decision is the first in 25 years to forthrightly face issues that have long been the subject of unresolved academic and bureaucratic debate. But it is unlikely to stand unchallenged. Now that the review court has opened the door to more frequent use of foreign intelligence wiretaps in criminal cases, it has all but guaranteed far more litigation over the constitutionality of such taps. What’s more, challenges mounted by criminal defendants will be heard in the ordinary federal courts, not special foreign intelligence tribunals. Persuasive as it may be, one doubts that every court of appeal will adopt the review court’s analysis. So the review court’s decision may well resolve the constitutional questions that have bedeviled foreign intelligence intercepts for so long — not because it provides a final answer itself, but because it sets the stage for review in the Supreme Court of the United States. Stewart A. Baker, a partner with D.C.-based Steptoe & Johnson, served as general counsel of the National Security Agency from 1992 to 1994.

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