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tangent4ronpaul
04-01-2010, 05:21 AM
http://www.nytimes.com/2010/04/01/us/01nsa.html

WASHINGTON — A federal judge ruled Wednesday that the National Security Agency’s program of surveillance without warrants 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 representing it in 2004. Declaring that the plaintiffs had been “subjected to unlawful surveillance,” the judge said the government was liable to pay them damages.

The ruling delivered a blow to the Bush administration’s claims that its 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’ international e-mail messages and phone calls without court approval, even though the Foreign Intelligence Surveillance Act, or FISA, required warrants.

The Justice Department said it was reviewing the decision and had made no decision about whether to appeal.

The ruling by Judge Walker, the chief judge of the Federal District Court in San Francisco, 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 position, he 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.”

Because the government merely sought to block the suit under the state-secrets privilege, it never mounted a direct legal defense of the N.S.A. program in the Haramain case.

Judge Walker did not directly address the legal arguments made by the Bush administration in defense of the N.S.A. program after The New York Times disclosed its existence in December 2005: that the president’s wartime powers enabled him to override the FISA statute. But lawyers for Al Haramain were quick to argue that the ruling undermined the legal underpinnings of the war against terrorism.

One of them, Jon Eisenberg, 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. Obeying Congressional legislation shouldn’t be optional with the president of the U.S.”

A Justice Department spokeswoman, Tracy Schmaler, noted that the Obama administration had overhauled the department’s procedures for invoking the state-secrets privilege, requiring senior officials to personally approve any assertion before lawyers could make it in court. She said that approach would ensure that the privilege was invoked only when “absolutely necessary to protect national security.”

The ruling is the second time a federal judge has declared the program of wiretapping without warrants 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.

Several other lawsuits filed over the program have faltered because of similar concerns over standing or because of immunity granted by Congress to telecommunications companies that participated in the N.S.A. program.

By contrast, the 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 the plaintiffs in the Haramain case were not allowed to use the document to prove that they had standing, Mr. Eisenberg and six other lawyers working on the case were able to use public information — including a 2007 speech by an F.B.I. official who acknowledged that Al Haramain had been placed under surveillance — to prove it had been wiretapped.

Judge Walker’s opinion cataloged other such evidence and declared that the plaintiffs had shown 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 government as an institution, rejecting the lawsuit’s effort to hold Robert S. Mueller III, the F.B.I. director, personally liable.

Mr. Eisenberg said that he would seek compensatory damages of $20,200 for each of the three plaintiffs in the case — or $100 for each of the 202 days he said they had shown they were subjected to the surveillance. He said he would ask the judge to decide how much to award in punitive damages, a figure that could be up to 10 times as high. And he said he and his colleagues would seek to be reimbursed for their legal fees over the past five years.

The 2005 disclosure of the existence of the program set off a national debate over the limits of executive power and the balance between national security and civil liberties. The arguments continued over the next three years, as Congress sought to forge a new legal framework for domestic surveillance.

In the midst of the presidential campaign 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 program. As a senator then, Barack Obama voted in favor of the new law, despite objections from many of his supporters. President Obama’s administration now relies heavily on such surveillance in its fight against Al Qaeda.

The overhauled law, however, still requires the government to obtain a warrant if it is focusing on an American citizen or an organization 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.

But since Mr. Obama took office, the N.S.A. has sometimes violated the limits imposed on spying on Americans by the new FISA law. The administration has acknowledged the lapses but said they had been corrected.

Bern
04-01-2010, 05:48 AM
The only thing that surprises me about this story is that the judge made the right decision.

sevin
04-01-2010, 06:04 AM
I don't need a federal judge to tell me that's illegal.

Baptist
04-01-2010, 06:24 AM
The only thing that surprises me about this story is that the judge made the right decision.

This judge has taken the right position on wiretaps for awhile. This is the same judge that Obama said "give the government back the evidence (the papers we sent you saying we are spying on you) or I will send U.S. Marshals to your (judge Walker) office to remove them.

Bobster
04-01-2010, 06:29 AM
Is it bad that my first reaction was "April Fools!"?

:(

Rael
04-01-2010, 07:00 AM
This judge has taken the right position on wiretaps for awhile. This is the same judge that Obama said "give the government back the evidence (the papers we sent you saying we are spying on you) or I will send U.S. Marshals to your (judge Walker) office to remove them.

I never heard about that. Do you have a reference for the story?

Bern
04-01-2010, 07:03 AM
nm

angelatc
04-01-2010, 08:10 AM
The court didn't rule the wiretaps illegal:

http://volokh.com/2010/04/01/what-al-haramain-says-and-what-it-doesnt-say/


The Obama Administration wasn’t arguing that the surveillance program was lawful. As a result, the decision doesn’t rule that the program was unlawful. Rather, the Obama Administration was just arguing that Judge Walker couldn’t reach the merits of the case because of the state secrets privilege. After Judge Walker rejected the state secrets privilege claim, the case was over: DOJ not having argued that warrantless monitoring was lawful, Walker had no choice but to grant relief to the plaintiffs on their claim.

pcosmar
04-01-2010, 08:28 AM
SO,
Who is going to jail for Violating Civil Rights under the color of Law?

Rhetorical question.
:(

Aratus
04-01-2010, 08:43 AM
ALL HIDDEN NON_JUDICIAL BRANCH APPROVEd NSA 9-11 DRIVEN WIRETAPs ARE DEGREEs of ILLEGAL!?!
DO WE ALL BY THIS FEDERAL RULING GET OUR BILL Of RIGHTs BACK IN FULL AROUND THe FISA DEBATE???

Matt Collins
04-01-2010, 11:53 AM
YouTube - KO Countdown : Wiretap 090407 : Obama Side With Bush (http://www.youtube.com/watch?v=yVGiUp62CR8)

Reason
04-01-2010, 12:20 PM
Judge: NSA Wiretapping Program Illegal (http://www.democracynow.org/2010/4/1/headlines#1)

A federal judge has ruled the National Security Agency’s warrantless surveillance program was illegal and in violation of the Foreign Intelligence Surveillance Act. Chief Judge Vaughn Walker of the federal district court in San Francisco ruled the government illegally intercepted the phone calls of an Oregon-based Islamic charity called Al Haramain in 2004. Both the Bush and Obama administrations had tried to dismiss the suit claiming a trial could result in the release of state secrets. But Judge Walker rejected the state secrets argument. Attorney Jon Eisenberg said the ruling marks an “implicit repudiation of the Bush-Cheney theory of executive power.”

BetaMale
04-01-2010, 12:22 PM
This along with the supreme court ruling of McCain/Feingold being unconstitutional gives me some hope for the future.

Stary Hickory
04-01-2010, 12:54 PM
No way! Really? Dang...means they can't just listen to whatever we talk about? I thought this shit was covered under the commerce clause.

foofighter20x
04-01-2010, 01:02 PM
I don't need a federal judge to tell me that's illegal.

But we do need a federal judge to tell the government it is...

Matt Collins
04-01-2010, 01:48 PM
http://www.eff.org/deeplinks/2010/03/court-rules-warrantless-wiretapping-illegal




March 31st, 2010 http://www.eff.org/sites/all/themes/frontier/images/social/email.gif (?subject=EFF:%20Court%20Rejects%20Governments%20E xecutive%20Power%20Claims%20and%20Rules%20That%20W arrantless%20Wiretapping%20Violated%20Law&body=Today,%20Chief%20Judge%20Vaughn%20Walker%20of %20the%20federal%20district%20court%20in%20San%20F rancisco%20found%20that%20the%20government%20illeg ally%20wiretapped%20an%20Islamic%20charitys%20phon e%20calls%20in%202004,%20granting%20summary%20judg ment%20for%20the%20plaintiffs%20in%20%20Al-Haramain%20Islamic%20Foundation%20v....%0D%0A%0D%0 Ahttp://www.eff.org/deeplinks/2010/03/court-rules-warrantless-wiretapping-illegal) http://www.eff.org/sites/all/themes/frontier/images/social/digg.gif (http://digg.com/submit?url=http%3A%2F%2Fwww.eff.org%2Fdeeplinks%2F 2010%2F03%2Fcourt-rules-warrantless-wiretapping-illegal&title=Court+Rejects+Government%27s+Executive+Power +Claims+and+Rules+That+Warrantless+Wiretapping+Vio lated+Law) http://www.eff.org/sites/all/themes/frontier/images/social/reddit.gif (http://www.reddit.com/submit?url=http%3A%2F%2Fwww.eff.org%2Fdeeplinks%2F 2010%2F03%2Fcourt-rules-warrantless-wiretapping-illegal) http://www.eff.org/sites/all/themes/frontier/images/social/delicious.gif (http://del.icio.us/post?url=http%3A%2F%2Fwww.eff.org%2Fdeeplinks%2F20 10%2F03%2Fcourt-rules-warrantless-wiretapping-illegal&title=Court+Rejects+Government%27s+Executive+Power +Claims+and+Rules+That+Warrantless+Wiretapping+Vio lated+Law) http://www.eff.org/sites/all/themes/frontier/images/social/facebook.gif (http://www.facebook.com/share.php?u=http%3A%2F%2Fwww.eff.org%2Fdeeplinks%2 F2010%2F03%2Fcourt-rules-warrantless-wiretapping-illegal&t=Court+Rejects+Government%27s+Executive+Power+Cla ims+and+Rules+That+Warrantless+Wiretapping+Violate d+Law) http://www.eff.org/sites/all/themes/frontier/images/social/twitter.gif (http://twitter.com/home?status=Court+Rejects+Government%27s+Executive +Power+Claims+and+Rules+That+Warrantless+Wiretappi ng+Violated+Law%20http%3A%2F%2Feff.org%2Fn%2F10006&src=eff.org) http://www.eff.org/sites/all/themes/frontier/images/social/identica.gif (http://identi.ca/notice/new?status_textarea=Court+Rejects+Government%27s+E xecutive+Power+Claims+and+Rules+That+Warrantless+W iretapping+Violated+Law%20http%3A%2F%2Feff.org%2Fn %2F10006&src=eff.org)
Court Rejects Government's Executive Power Claims and Rules That Warrantless Wiretapping Violated Law (http://www.eff.org/deeplinks/2010/03/court-rules-warrantless-wiretapping-illegal)

News Update (http://www.eff.org/blog-categories/news-update) by Kevin Bankston (http://www.eff.org/about/staff/kevin-bankston)


Today, Chief Judge Vaughn Walker of the federal district court in San Francisco found (http://www.eff.org/files/alharamainorder33110.pdf) that the government illegally wiretapped an Islamic charity's phone calls in 2004, granting summary judgment for the plaintiffs in Al-Haramain Islamic Foundation v. Obama (http://www.eff.org/cases/al-haramain). The court held the government liable for violating the Foreign Intelligence Surveillance Act (FISA).



Today's order is the first decision since ACLU v. NSA (http://www.aclu.org/national-security/aclu-v-nsa-challenge-illegal-spying) to hold that warrantless wiretapping (http://www.eff.org/issues/nsa-spying) by the National Security Agency was illegal. The decision in ACLU v. NSA was overturned on other grounds in 2007, and 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 court's thorough decision is a strong rebuke to the government's argument that only the Executive Branch may determine if a case against the government can proceed in the courts, by invoking state secrets. The Obama Administration adopted (http://www.eff.org/press/archives/2009/04/05) this "state secrets privilege" theory from the Bush Administration's legal positions in this and other warrantless wiretapping cases.
The government's overreaching claim of unbridled executive power finally backfired today in the Al-Haramain case. As the court wrote in its order, "Under defendants' theory, executive branch officials may treat FISA as optional and freely employ the SSP [state secrets privilege] to evade FISA, a statute enacted specifically to rein in and create a judicial check for executive branch abuses of surveillance authority."



The court, although noting the government's "impressive display of argumentative acrobatics," flatly rejected this theory. "Defendants could readily have availed themselves of the court's processes to present a single, case-dispositive item of evidence at one of a number of stages of this multi-year ligitation: a FISA warrant. They never did so." Therefore, "for purposes of this litigation, there was no such warrant for the electronic surveillance of any of plaintiffs," and the surveillance therefore violated FISA.


In his opinion, Judge Walker found that the plaintiffs had succeeded in making out a case based solely on non-classified public evidence that the government had eavesdropped on their phone calls. Because the government refused to confirm or deny that it had ever gotten a court order authorizing that wiretapping, Walker concluded that the government had failed to dispute the plaintiffs' claims. Walker then held that the government violated FISA when it spied on the charity without first obtaining an order from the secretive Foreign Intelligence Surveillance Court (http://en.wikipedia.org/wiki/United_States_Foreign_Intelligence_Surveillance_Co urt) to authorize the spying.


The plaintiffs also brought several other claims against the government based on the illegal wiretapping, including claims for violation of the First and Fourth Amendments to the Constitution. However, today's order only granted summary judgment on the FISA claims. The next step is up to the plaintiffs, according to Judge Walker. Al Haramain can either voluntarily dismiss their non-FISA claims and obtain a final judgment, including damages, on their FISA claim, or they can continue to press their additional claims, in which case the court and the parties will have a case management conference to determine how to proceed. Regardless of which path the plaintiffs choose, the government is ultimately likely to appeal Judge Walker's decision to the Ninth Circuit Court of Appeals, which will also be considering appeals in EFF's NSA wiretapping lawsuits Hepting v. AT&T (http://www.eff.org/deeplinks/2010/03/court-rules-warrantless-wiretapping-illegal) and Jewel v. NSA (http://www.eff.org/cases/jewel).


Related Issues: NSA Spying (http://www.eff.org/issues/nsa-spying), Privacy (http://www.eff.org/issues/privacy)

(http://www.eff.org/issues/privacy)
Related Cases: Al Haramain v. Bush (http://www.eff.org/cases/al-haramain), Hepting v. AT&T (http://www.eff.org/cases/hepting), Jewel v. NSA (http://www.eff.org/cases/jewel), NSA Multi-District Litigation (http://www.eff.org/cases/att)
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