Bush’s warrantless wiretaps whacked

By Michael Fraase

Friday, 04 July 2008 10:45AM CST

Section: Law

Bush listeningChief Judge for the Northern District of California, Vaughn Walker, ruled Wednesday that the Foreign Intelligence Surveillance Act (FISA) is the exclusive means by which the president may eavesdrop on Americans. In brief, President Bush’s assertion that his constitutional authority as commander in chief superseded that law was found to be totally invalid.

The Justice Department has maintained for more than two years that the illegal warrantless wiretapping ordered and carried out by the Bush administration were state secrets and that the US Constitution granted the president the authority to order such wiretaps without a warrant. Not so, ruled Judge Walker. Walker ruled that the surveillance rules were clearly established under FISA in 1978. Those rules require the government to get a warrant from a secret court for all foreign surveillance activities.

Walker’s ruling was clear:

“Congress appears to have intended to—and did—establish the exclusive means for foreign intelligence activities to be conducted. Whatever power the executive may otherwise have had in this regard, FISA limits the power of the executive branch to conduct such activities and it limits the executive branch’s authority to assert the state secrets privilege in response to challenges to the legality of its foreign intelligence surveillance activities.”

The timing of the ruling is interesting, coming as it does as the US Senate is reworking FISA, part of which would grant retroactive immunity to the telephone companies that cooperated with the executive branch’s illegal warrantless wiretap program. The US House of Representatives has already passed such legislation.

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