Federal Judge Finds N.S.A. Wiretapping Program Illegal
Enemy belligerent act will come in to shore up this new judgment.
It will have to be made retro-active, just like the Bush administration’s policestate protectionist laws.
When the other branches of government have gotten in the way of executive branches illegal unconstitutional actions the executive branch will just change the law to allow a standing federal police army, warrentless spying, torture of family members to gain information, indefinate unappealable detention and flat out secret assassinations of citizens.
Let’s see if we continue to see the B&O railroading of America now that we are on the even faster tracked Obama line.
Federal Judge Finds N.S.A. Wiretapping Program Illegal
By CHARLIE SAVAGE and JAMES RISEN
Published: March 31, 2010
WASHINGTON — A federal judge on Wednesday ruled that the National Security Agency’s warrantless surveillance program was illegal, rejecting the Obama administration’s effort to keep shrouded in secrecy one of the most disputed counterterrorism policies of former President George W. Bush.
In a 45-page opinion, Judge Vaughn R. Walker ruled that the government had violated a 1978 federal statute requiring court approval for domestic surveillance when it intercepted phone calls of Al Haramain, a now-defunct Islamic charity in Oregon, and of two lawyers who were representing it in 2004. Declaring that the plaintiffs had been “subjected to unlawful surveillance,” the judge said that the government was liable to pay them damages.
The ruling delivered a blow to the Bush administration’s claims that its warrantless surveillance program, which Mr. Bush secretly authorized shortly after the terrorist attacks of Sept. 11, 2001, was lawful. Under the program, the National Security Agency monitored Americans’ e-mail messages and phone calls without court approval, even though the Foreign Intelligence Surveillance Act, or FISA, required warrants.
After The New York Times reported on the existence of the program in December 2005, the Bush legal team argued that it was lawful because the president’s wartime powers enabled him to override the statute. Jon Eisenberg, a lawyer represented Al Haramain, said Judge Walker’s ruling was an “implicit repudiation of the Bush-Cheney theory of executive power.”
“Judge Walker is saying that FISA and federal statutes like it are not optional,” Mr. Eisenberg said. “The president, just like any other citizen of the United States, is bound by the law.”
The Justice Department said it was reviewing the decision and had made no decision about whether to appeal it.
The ruling by Judge Walker, the chief judge of the Federal District Court in San Francisco, also rejected the Justice Department’s claim — first asserted by the Bush administration and continued under President Obama — that the charity’s lawsuit should be dismissed without a ruling on the merits because allowing it to go forward could reveal state secrets.
The judge characterized that expansive use of the so-called state-secrets privilege as amounting to “unfettered executive-branch discretion” that had “obvious potential for governmental abuse and overreaching.”
That view, he also said, would enable government officials to flout the warrant law — even though Congress had enacted it “specifically to rein in and create a judicial check for executive-branch abuses of surveillance authority.”
A department spokeswoman, Tracy Schmaler, noted that the Obama administration had overhauled the department’s procedures for when to invoke the state secrets privilege, requiring senior officials to personally approve any assertion before lawyers could make it in court. Ms. Schmaler said that approach would ensure it is invoked only when “absolutely necessary to protect national security.”
The ruling is the second time a federal judge has declared a program of wiretapping without warrants to be illegal. But a 2006 decision by a Detroit judge, Anna Diggs Taylor, was later reversed on the grounds that the plaintiffs in that case could not prove that they had been wiretapped and so lacked legal standing to sue. Several other lawsuits filed over the program have failed, or been dealt a severe blow, because of similar concerns over standing.
By contrast, the Al Haramain case was closely watched because the government inadvertently disclosed a classified document that made clear that the charity had been subjected to surveillance without warrants.
Although Judge Walker eventually ruled that the plaintiffs could not use that document to prove that they had standing, Mr. Eisenberg and six other lawyers working on the case were able to use public source documents — including a 2007 speech by an F.B.I. official who acknowledged that Al Haramain had been placed under surveillance — to prove the wiretapping.
Judge Walker’s opinion cataloged other such evidence and declared that the plaintiffs had shown that they were wiretapped in a manner that required a warrant. He said the government had failed to produce a warrant, so he granted summary judgment in favor of the plaintiffs.
But Judge Walker limited liability in the case to the executive branch as an institution, rejecting any finding of personal liability by government officials, including Robert S. Mueller III, the F.B.I. director.
In 2008, Congress overhauled the Foreign Intelligence Surveillance Act to bring federal statutes into closer alignment with what the Bush administration had been secretly doing. The legislation essentially legalized certain aspects of the warrantless surveillance program.
But the overhauled law still requires the government to obtain a warrant if it is focusing on an individual or entity inside the United States. The surveillance of Al Haramain would still be unlawful today if no court had approved it, current and former Justice Department officials said.