Federal Judge Rules Against Bush on Wiretapping

By Jeralyn, Section Court Decisions
Posted on Thu Jul 03, 2008 at 02:04:30 AM EST
Tags: NSA warrantless wiretapping (all tags)

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A federal judge in California Wednesday ruled that Bush's warrantless electronic surveillance runs afoul of FISA:

“Congress appears clearly to have intended to — and did — establish the exclusive means for foreign intelligence activities to be conducted,” the judge wrote. “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.”

Judge Walker’s voice carries extra weight because all the lawsuits involving telephone companies that took part in the N.S.A. program have been consolidated and are being heard in his court.

The opinion is here (pdf). [More...]

The case involved an Al-Haramain, an Oregon Charity that alleged it was subjected to NSA warrantless surveillance.

The Justice Department has tried for more than two years to kill the lawsuit, saying any surveillance of the charity or other entities was a “state secret” and citing the president’s constitutional power as commander in chief to order wiretaps without a warrant from a court under the agency’s program.

But Judge Walker, who was appointed to the bench by former President George Bush, rejected those central claims in his 56-page ruling. He said the rules for surveillance were clearly established by Congress in 1978 under the Foreign Intelligence Surveillance Act, which requires the government to get a warrant from a secret court.

The impact of the ruling:

The ruling comes as the Senate is overhauling the foreign intelligence law. The measure would reaffirm FISA as the exclusive means for the president to order wiretaps through court warrants, but it would also provide legal immunity to phone companies involved in the eavesdropping program. A vote could come Tuesday.

The immunity issue would not directly affect this lawsuit because Al-Haramain is suing the government, not the phone companies. But the nearly 40 other lawsuits against phone companies that Judge Walker is overseeing would almost certainly have to be dismissed if immunity is signed into law, legal analysts say.

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Federal Judge Rules Against Bush on Wiretapping | 22 comments (22 topical)

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I can think of only two (5.00 / 1) (#3)
by weltec2 on Thu Jul 03, 2008 at 06:12:41 AM EST

believable reasons for her removal of impeachment from the table. 1) The Repugs have something on her and are blackmailing her. 2) She's been bought. Is there another valid reason that I am not considering here?

I do not buy the line that the Bush years are almost over. The law cries out for impeachment and she is not doing her job. The American people want impeachment. The international community is waiting to find out if America a country of laws or lawlessness. So far all they're seeing is lawlessness and the spinelessness of the Democratic Party.

Feingold, when Interviewed Last Week (none / 0) (#10)
by BackFromOhio on Thu Jul 03, 2008 at 09:11:46 AM EST

indicated he thought the primary reason Dems were going along with the FISA bill was fear of having the national security card used against them in upcoming elections. He specifically said he did not think complicity or shared guilt was the issue. My guess is the reason for having taken impeachment off the table was similar and, at the time -- during the 2006 election season, I think Nancy & other Dems thought they would not take a majority unless they promised that impeachment would be off the table if they were to achieve such a majority. Running scared and fear of leading seems to motivate Dems whenever they might have the opportunity for real leadership.


They certainly act (none / 0) (#13)
by weltec2 on Thu Jul 03, 2008 at 09:39:29 AM EST

like this is true. Quite honestly I have never understood this because I have never believed in the national security threat. America is not under seige. It never was. 9/11 was an isolated act of revenge for keeping US troops on Saudi soil.

As for thinking that they needed to take impeachment off the table to get a majority... that seems awfully thin to me. It sounds to me like an awfully paltry veil to hide their cowardice behind.


: Can't say I disagree (none / 0) (#14)
by BackFromOhio on Thu Jul 03, 2008 at 10:41:22 AM EST

but to me, the national security discussion is one the Dems could take the lead on, by talking about what it really means --
seaport & airport security
data security (how many government computer systems have been hacked into in the last several years?)
information technology security
security of having National Guard that is not
entirely overseas and beyond exhaustion
I'm sure many more items could be added.

Impeach? (5.00 / 1) (#4)
by MO Blue on Thu Jul 03, 2008 at 06:29:47 AM EST

The Dems took impeachment off the table and now if they pass FISA with telecom immunity, they will have advanced to full cover up for Bush mode.

If Obama becomes President, all those additional presidential powers that were created by Bush will belong to the Democratic president.

: Repugs? Impeach in a heartbeat if Obama's elected (5.00 / 1) (#12)
by Ellie on Thu Jul 03, 2008 at 09:17:18 AM EST

If they're not already sitting on dirt gleaned by warrantless partisan spying, then none of us has been paying full attention to the Rove/Bush legacy of driving it like they stole it, and illicit spying has been a recurring crime against the people.
All along this administration has been about doing Watergate "right", sealing up every crack that undid Nixon. I'll go to my grave believing that the phrase "9/11 changed everything" was a mantra for the GOP and neo-cons of a gift to justify anything they damn well wanted.
I found this aspect of Bush's opinion on approval ratings interesting: he felt Reagan should have "used up" his public approval and political capital better to ram through more conservative and draconian legislation.
In that context Pres. 29%'s periodic references to being vindicated in "future history" are somewhat less creepy (though not by much) and make more sense.
Dems care more about polls and being liked -- really really liked -- by the people they f*ck over. The GOP is all about consolidating power and could care less about approval ratings.
I expect they'll go after Obama for fund-raising or election fraud scandals and already have any dirt they need.

this is nice. (5.00 / 1) (#11)
by cpinva on Thu Jul 03, 2008 at 09:15:33 AM EST

where were all these stiff back boned judges, for the past 7.5 years, as the constitution was being torn apart by the bush administration?

with only 6 months to go, i guess maybe they figure it's safe once again to do their jobs. i feel much better now.

IMPEACH! (none / 0) (#1)
by pluege on Thu Jul 03, 2008 at 04:33:27 AM EST

Pelosi do your job.

PULEEZE! (none / 0) (#2)
by The Realist on Thu Jul 03, 2008 at 04:49:26 AM EST

That would mean that she would have to grow a spine.

I've long since taken a breath waiting for that to happen.

This actually demonstrates the need for FISA (none / 0) (#5)
by jccamp on Thu Jul 03, 2008 at 07:29:41 AM EST

revision. The time period of the wiretapping was just after 9/11, long before the FISA amendments. The U S monitored calls from Saudi Arabia, from a group the U S believed a terrorist organization. The version of FISA then in effect did not allow intercepts of anything but another national government. One of the calls from Saudi Arabia was to a sub-group within U S territory. This was also not allowed under the 1978 law. The Bush administration, acting under the president's authority to wage war, made the intercepts anyway, without statutory authority.
At least one other U S District judge has found that the administration DID in fact have that authority.
After the intercepts from which the lawsuit arose, FISA was amended with bipartisan support to prevent future occurrences of this dilemma, during which the administration chose to assert presidential authority which may or may not have existed, since the law then prevailing forbade the government from wiretapping groups such as Al Qeada.
Whether the authority to wiretap, based solely on presidential authority to wage war, exists or not remains to be determined. it certainly won't stop with a District Court judge. This decision actually dismisses the lawsuit about the wiretapping, neatly sidestepping the issue being appealed and moved to the next level. The lawsuit may be re-filed, and we may yet get a decision from the USSC about this question.
In any event, the revisions to FISA have solved the issue without forcing the administration to (maybe) stretch (over-reach?) constitutional authority of the executive branch.
Under the circumstances of the post-9/11, pre-FISA revision world, which seem to be a catch-22, do you really believe Bush should be impeached for actions like this?

No. There are two different issues here. (none / 0) (#8)
by weltec2 on Thu Jul 03, 2008 at 08:02:29 AM EST

First, I think Bush should be impeached for misleading us into an illegal war and for his part in allowing and even encouraging torture under his watch. I want Cheney impeached for giving no-bid contracts to his friends.

Second, I want telecoms to testify in court under oath and without the cover of executive privilege about the extent to which they have violated the privacy of ordinary citizens and under whose orders they did so. There seems to be ample evidence (cf., KO's interview with the SF employee who has already spoken out) that such violations have taken place and are still taking place.


Um (none / 0) (#15)
by Steve M on Thu Jul 03, 2008 at 10:42:26 AM EST

The prior version of FISA barred the government from wiretapping terrorist groups like al-Qaeda? Is that your final answer?

I'd love for you to cite me the section of the statute that barred the government from wiretapping anything but a national government.


Here you go, as requested: (none / 0) (#16)
by jccamp on Thu Jul 03, 2008 at 01:19:16 PM EST

"Since 50 U.S.C. § 1802(a)(1)(A) of this act specifically limits warrantless surveillance to foreign powers as defined by 50 U.S.C. §1801(a) (1),(2), (3) and omits the definitions contained in 50 U.S.C. §1801(a) (4),(5),(6) the act does not authorize the use of warrantless surveillance on: groups engaged in international terrorism or activities in preparation therefore; foreign-based political organizations, not substantially composed of United States persons; or entities that are directed and controlled by a foreign government or governments.[15] "
Further...
"Alternatively, the government may seek a court order permitting the surveillance using the FISA court.[19] Approval of a FISA application requires the court find probable cause that the target of the surveillance be a "foreign power" or an "agent of a foreign power", and that the places at which surveillance is requested is used or will be used by that foreign power or its agent."

This is the reason the original 1978 law needed changing. Given the history of domestic spying against the '70's version of terrorist groups. the 1978 act mandated that any surveillance or intercept of a terror group required probable cause. The recently expired 2007 amendment changed the scope to allow the same type of intercepts against terror groups as previously allowed against foreign governments and foreign government intelligence agencies.


Here's a good link (none / 0) (#17)
by jccamp on Thu Jul 03, 2008 at 01:24:16 PM EST

that explains the law probably better than I did.

Here


Oh (none / 0) (#19)
by Steve M on Thu Jul 03, 2008 at 02:04:47 PM EST

The act prohibited WARRANTLESS surveillance. Well of course it did! That's not what you said.


The original FISA permitted (none / 0) (#20)
by jccamp on Thu Jul 03, 2008 at 02:32:16 PM EST

both FISC approved and warrantless surveillance and/or intercepts of foreign governments and foreign governmental agencies only. The warrantless wiretaps required after-the-fact approval by a FISC.

A FISC approved wiretap had to "find probable cause that the target of the surveillance be a "foreign power" or an "agent of a foreign power" There was NO provision for intel gathering from terror groups.

The only way for the U S government to wiretap any terror group, including Al Qeada, was to apply for a Title III wiretap, the same used in any criminal case. That has always been an option, if the wiretap is within the U S, and if the government is willing to present probable cause in an affidavit that will eventually become public record. FISA was originally written to remove these restrictions on foreign intelligence gathering.

There was no way for the U S to legally wiretap groups such as Al Qeada if the intelligence gathering was not conducted on U S territory, or of the U S did not wish to disclose the basis for their wiretapping, until the original FISA was modified by the Patriot Act.

Prior to the post-9/11 Patriot Act and the revisions most recently approved in 2007, the U S Government was forbidden intelligence collection, with or without a FISC order, when the target was a terror group such as Al Qeada.

In the case cited, the original intercept started in Saudi Arabia, and would have been illegal under the 1978 FISA. The Bush administration received legal opinions that presidential wartime powers allowed warrantless wiretapping, in an effort to collect intelligence against terror groups. They also received a ruling from a sitting U S District Judge within the FISC to the same effect. The new ruling contradicts the previous ruling, so there is now a conflict among District Court judges. After Congress passed revisions to the 1978 FISA that would allow intel gathering against terror groups, the Bush administration publicly abandoned it's warrantless wiretapping based on war powers. Whether those powers actually exist will probably end up in the Supreme Court.

Under the 1978 FISA, wiretapping a terror group was illegal, either with or without a FISC order.


Hmm (none / 0) (#21)
by Steve M on Thu Jul 03, 2008 at 03:22:34 PM EST

Here is the definition of "electronic surveillance" from FISA. It's not clear to me how any of this would apply to eavesdropping on a terror group in Saudi Arabia.

(f) "Electronic surveillance" means -
(1) the acquisition by an electronic, mechanical, or other surveillance device of the contents of any wire or radio communication sent by or intended to be received by a particular, known United States person who is in the United States, if the contents are acquired by intentionally targeting that United States person, under circumstances in which a person has a reasonable expectation of privacy and a warrant would be required for law enforcement purposes;
(2) the acquisition by an electronic, mechanical, or other surveillance device of the contents of any wire communication to or from a person in the United States, without the consent of any party thereto, if such acquisition occurs in the United States, but does not include the acquisition of those communications of computer trespassers that would be permissible under section 2511(2)(i) of title 18;
(3) the intentional acquisition by an electronic, mechanical, or other surveillance device of the contents of any radio communication, under circumstances in which a person has a reasonable expectation of privacy and a warrant would be required for law enforcement purposes, and if both the sender and all intended recipients are located within the United States; or
(4) the installation or use of an electronic, mechanical, or other surveillance device in the United States for monitoring to acquire information, other than from a wire or radio communication, under circumstances in which a person has a reasonable expectation of privacy and a warrant would be required for law enforcement purposes.

It also seems quite clear to me, if I may be forgiven for sounding like John Yoo for a moment, that eavesdropping on foreign terrorist groups where no U.S. person is involved would be well within the President's inherent Article II powers.


: In the case cited, (none / 0) (#22)
by jccamp on Thu Jul 03, 2008 at 05:29:12 PM EST

the U S was intercepting telephone calls of a group in Saudi Arabia. one or more of the calls went to a similarly named charity within U S territory, triggering FISA restrictions, since the calls ended in U S Territory.
The sections you quoted are from the 2006 amended version of FISA. I was referring to the original version, in effect as of 9/11/2001. Unfortunately, I can't find a text of the 1978 version, only synopses.
The issue of whether the President's authority to order foreign intercepts is apparently trumped by FISA, if the intercepts fall within FISA areas, such as one end of a communication terminating within U S territory, and the like, is the present question. There are conflicting court opinions as to the limits of presidential authority in this area, since Congress deliberately applied limits via FISA.
I was mistaken that FISA applied to totally foreign intercepts wherein no U S citizen was known to be involved. There had to be some U S nexus for FISA to apply, even in the 1978 version. My point that the case at issue in the OP demonstrated the need for a revised FISA still applies though, since the intercept did end in the US, and at the time, there was a statutory prohibition against such surveillance of terror groups.
mea culpa.

Soooo (none / 0) (#6)
by weltec2 on Thu Jul 03, 2008 at 07:40:03 AM EST

you're implying that Dems want to violate our human rights just as much as the NeoCons. And Nancy and Diane and Chuck and Patrick and John and all the Big Dems are all in on this. Sounds like a dystopian nightmare in the making. Gutted cities. Everyone is homeless. There are cameras everywhere.

Won't this ruling affect the new FISA bill? (none / 0) (#7)
by bmc on Thu Jul 03, 2008 at 07:46:13 AM EST

As a result of Judge Walker's ruling, how does the new FISA law stand on legal merits? Will the ruling force some changes?

http://www.aclu.org/safefree/nsaspying/35731res20080619.html

: It doesn't seem to. (none / 0) (#18)
by jccamp on Thu Jul 03, 2008 at 01:48:19 PM EST

The judge actually ruled that an act of Congress (FISA) defining the government's ability to wiretap trumped the President's inherent authority of the executive branch. At least in this case, the judge ruled in favor of FISA's applicability.
As an aside, the ACLU's piece is at the least, hyperbole and exaggeration. The ACLU is not a neutral observer in this issue, and their partisanship should be recognized, even if you agree completely with them.

Do these include the EuroCo's who vowed to sue? (none / 0) (#9)
by Ellie on Thu Jul 03, 2008 at 08:57:06 AM EST

Al-Haramain is suing the government, not the phone companies. But the nearly 40 other lawsuits against phone companies that Judge Walker is overseeing would almost certainly have to be dismissed if immunity is signed into law, legal analysts say.

I also wonder if this goes all the way back to spying on the UNSC.

I recall the revelation, after some media inside Bubble America saw just how ginned-up the WMDs / Iraq war case was, that the US govt spied on members of the UN-Security Council before the second vote (which would have been negative to go to war) could occur.

Foreign media did run the story at the time but it was a blip, as the US was in full bore patriotic mode.

The Smirk/Sneer admin then went with the Coalition of the Willing, fortified by such global heavyweights as Micronesia*.

* I believe that's the tiny civilization under glass in the Superman comix.