5. Recapitulation. After assessing the prophylactic procedures applicable here, including the provisions of the PAA, the affidavits supporting the certifications, section 2.5 of Executive Order 12333, and the declaration mentioned above, we conclude that they are very much in tune with the considerations discussed in Sealed Case. Collectively, these procedures require a showing of particularity, a meaningful probable cause determination, and a showing of necessity. They also require a durational limit not to exceed 90 days—an interval that we previously found reasonable.[1] See In re Sealed Case, 310 F.3d at 740. Finally, the risks of error and abuse are within acceptable limits and effective minimization procedures are in place.
Balancing these findings against the vital nature of the government’s national security interest and the manner of the intrusion, we hold that the surveillances at issue satisfy the Fourth Amendment’s reasonableness requirement.
IV. CONCLUSION
Our government is tasked with protecting an interest of utmost significance to the nation—the safety and security of its people. But the Constitution is the cornerstone of our freedoms, and government cannot unilaterally sacrifice constitutional rights on the altar of national security. Thus, in carrying out its national security mission, the government must simultaneously fulfill its constitutional responsibility to provide reasonable protections for the privacy of United States persons. The judiciary’s duty is to hold that delicate balance steady and true.
We believe that our decision to uphold the PAA as applied in this case comports with that solemn obligation. In that regard, we caution that our decision does not constitute an endorsement of broad-based, indiscriminate executive power. Rather, our decision recognizes that where the government has instituted several layers of serviceable safeguards to protect individuals against unwarranted harms and to minimize incidental intrusions, its efforts to protect national security should not be frustrated by the courts. This is such a case.
We need go no further. The decision granting the government’s motion to compel is affirmed; the petition for review is denied and dismissed; and the motion for a stay is denied as moot.
So Ordered.
ORDER
WHEREAS,
1. An opinion that addresses and resolves issues of statutory and constitutional significance has been filed under seal;
2. It would serve the public interest and the orderly administration of justice to publish this opinion;
3. Publication of an unredacted opinion would disclose materials that have been properly classified by the Executive Branch;
4. Redactions, after consultation with the Executive Branch, can be made to exclude such classified materials without distorting the content of the discussion of the statutory and constitutional issues;
5. Such redactions have been made by the Court;
IT IS HEREBY ORDERED that:
1. The redacted opinion shall be published in the usual manner employed by the United States Courts of Appeals.
- ↑ This time period was deemed acceptable because of the use of continuing minimization procedures. In re Sealed Case, 310 F.3d at 740. Those minimization procedures are nearly identical to the minimization procedures employed in this case. See text supra.
