Judge Vaughn R. Walker, chief of the Federal District Court in San Francisco, ruled Wednesday that George W. Bush’s warrantless wiretapping program, first disclosed by the New York Times in December 2005, was illegal. Walker, in his 45-page decision (.pdf; 116KB), ruled that the National Security Agency violated a 1978 federal statute—the Foreign Intelligence Surveillance Act (FISA)—requiring warrants for domestic surveillance.
Bush argued vehemently that the president’s wartime powers allowed him to override FISA. Both Bush and President Obama have strenuously argued that the case should be dismissed for fear of revealing state secrets. Walker ruled that such use of the state-secrets privilege was “unfettered executive-branch discretion” that carried “obvious potential for governmental abuse and overreaching” and that Congress had passed FISA “specifically to rein in and create a judicial check for executive-branch abuses of surveillance authority.” Nonetheless, as emptywheel argues on Firedoglake, Walker’s ruling mostly leaves the state-secrets privilege intact.
In 2008, Congress modified FISA to legalize most of what the Bush administration had been doing in secret. Obama, then a senator, voted in favor of the modifications. Even with the modifications, however, FISA requires a warrant for surveillance of a US citizen or US-based organization.
Writing for the New York Times, Charlie Savage and James Risen point out this is the second time a federal court has found Bush’s warrantless wiretapping program to be illegal. “But a 2006 decision by a federal judge in Detroit, Anna Diggs Taylor, was reversed on the grounds that those plaintiffs could not prove that they had been wiretapped and so lacked legal standing to sue.” In this case the government accidentally disclosed a classified document—the document was later declared a state secret—that clearly showed the plaintiff, defunct Oregon-based Islamic charity Al Haramain and its lawyers, had been surveilled without warrants. While Al Haramain was prohibited from using the classified document, other public information (.pdf; 1.6MB) confirmed that the charity and its lawyers had been wiretapped without warrants.
Kevin Bankston, writing for the Electronic Frontier Foundation (EFF), notes that since ACLU v. NSA was overturned in 2007, “the focus of the government’s litigation strategy since then has been to avoid having any court rule on the merits of the issue.”
The penalty for violating FISA is five years in prison and a US$10,000 fine for each offense. Why isn’t anyone in jail? Salon‘s Glenn Greenwald may have a piece of the answer.
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