ing contemplated by Sealed Case. 310 F.3d at 740.
[redacted text]
The procedures incorporated through section 2.5 of Executive Order 12333, made applicable to the surveillances through the certifications and directives, serve to allay the probable cause concern. That section states in relevant part:
The Attorney General hereby is delegated the power to approve the use for intelligence purposes, within the United States or against a United States person abroad, of any technique for which a warrant would be required if undertaken for law enforcement purposes, provided that such techniques shall not be undertaken unless the Attorney General has determined in each case that there is probable cause to believe that the technique is directed against a foreign power or an agent of a foreign power.
46 Fed.Reg. at 59,951 (emphasis supplied). Thus, in order for the government to act upon the certifications, the AG first had to make a determination that probable cause existed to believe that the targeted person is a foreign power or an agent of a foreign power. Moreover, this determination was not made in a vacuum. The AG’s decision was informed by the contents of an application made pursuant to Department of Defense (DOD) regulations. See DOD, Procedures Governing the Activities of DOD Intelligence Components that Affect United States Persons, DOD 5240.1–R, Proc. 5, Pt. 2.C (Dec.1982). Those regulations required that the application include a statement of facts demonstrating both probable cause and necessity. See id. They also required a statement of the period—not to exceed 90 days—during which the surveillance was thought to be required.[1] See id.
[redacted text and footnote[2]]
The petitioner’s additional criticisms about the surveillances can be grouped into concerns about potential abuse of executive discretion and concerns about the risk of government error (including inadvertent or incidental collection of information from non-targeted United States persons). We address these groups of criticisms sequentially.
The petitioner suggests that, by placing discretion entirely in the hands of the Executive Branch without prior judicial involvement, the procedures cede to that Branch overly broad power that invites abuse. But this is little more than a lament about the risk that government officials will not operate in good faith. That sort of risk exists even when a warrant is required. In the absence of a showing of fraud or other misconduct by the affiant, the prosecutor, or the judge, a presumption of regularity traditionally attaches to the obtaining of a warrant. See, e.g., McSurely v. McClellan, 697 F.2d 309, 323–24 (D.C.Cir.1982).
Here—where an exception affords relief from the warrant requirement—common sense suggests that we import the same presumption. Once we have determined that protections sufficient to meet the Fourth Amendment’s reasonableness requirement are in place, there is no justification for assuming, in the absence of evidence to that effect, that those prophy-
- ↑ At oral argument, the government augmented this description, stating that, under the DOD procedure, the NSA typically provides the AG with a two-to-three-page submission articulating the facts underlying the determination that the person in question is an agent of a foreign power; that the National Security Division of the Department of Justice writes its own memorandum to the AG; and that an oral briefing of the AG ensues.
- ↑ [redacted text]
