Federal Judge Rules Bush's Warrantless NSA Wiretapping Illegal

By Jeralyn, Section War on Terror
Posted on Wed Mar 31, 2010 at 06:20:57 PM EST
Tags: NSA warrantless surveillance (all tags)

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A federal judge in San Francisco ruled today in an 45 page opinion (available here) that former President Bush's warrantless NSA wiretapping program was illegal.

The case involved the Al-Haramain Islamic Foundation, an Islamic charity, and two of its lawyers, Wendell Belew and Asim Ghafoor, who alleged their conversations were illegally intercepted. The Court granted their motion for summary judgment finding the Government is liable for damages for illegally wiretapping their conversations without a FISA warrant. [More...]

As the Times reports:

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.”

The 2008 FISA amendments changed the landscape a little bit.

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.

Background is here. Wired has more on today's decision.

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Federal Judge Rules Bush's Warrantless NSA Wiretapping Illegal | 17 comments (17 topical)

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Note the judge (5.00 / 1) (#2)
by andgarden on Wed Mar 31, 2010 at 06:30:37 PM EST

He seems to be getting lots of interesting cases these days.

Maybe there is a god after all. (none / 0) (#1)
by FoxholeAtheist on Wed Mar 31, 2010 at 06:23:04 PM EST

Good ruling (none / 0) (#3)
by MO Blue on Wed Mar 31, 2010 at 06:33:12 PM EST

Well at least one of the branches (none / 0) (#4)
by cawaltz on Wed Mar 31, 2010 at 06:43:25 PM EST

seems to still be doing the work of the people. Sigh. Wish the other two would get on the same page.

Yes, Virginia... (none / 0) (#5)
by Lora on Wed Mar 31, 2010 at 07:41:00 PM EST

Well I'll be darned.

damages? (none / 0) (#6)
by diogenes on Wed Mar 31, 2010 at 08:12:31 PM EST

How exactly were they damaged by the wiretaps, and what is the financial value of the money damages?

I wouldn't want us watching these guys (none / 0) (#7)
by jimakaPPJ on Wed Mar 31, 2010 at 09:16:15 PM EST

Al-Haramain Islamic Foundation, Inc. was the

Ashland, Oregon-based American branch of Al-Haramain Islamic Foundation, a huge international Islamic charity founded and headquartered in Saudi Arabia, with subsidiaries in countries around the world. After 9/11, several governments (including the U.S., the U.K., and even the United Nations) began investigating the terror funding network, and found evidence that money from Al-Haramain was used not just for charity projects but also to finance Al Qaeda and specific terrorist plots. Various foreign branches of Al-Haramain were broken up or shut down, but it was not apparently until 2004 that the U.S. branch of Al-Haramain came under intense investigation

snip

What does Al-Haramain want? Well, according to the original complaint filed on February 28, 2006, they are seeking acknowledgement that the government conducted warrantless phone surveillance on Al-Haramain's director Soliman al-Buthe (who subsequently fled to Saudi Arabia) and Al-Haramain's lawyers Asim Ghafoor and Wendell Belew -- surveillance which violated a 1978 federal law called FISA (the Foreign Intelligence Surveillance Act), and a treaty called the "International Covenant on Civil and Political Rights," and their constitutional First, Fourth and Sixth Amendment rights. They also are seeking suppression of any evidence gathered by the surveillance; revocation of their status as a "specially designated global terrorist"; and punitive damages totalling $1 million plus a thousand dollars a day and attorney's fees.

If they were that horrible (none / 0) (#8)
by cawaltz on Wed Mar 31, 2010 at 10:33:07 PM EST

then I daresay it would have been that difficult for them to get a warrant with cause.

I suppose that you have an excuse as to why the FBI needed the information which according to the IG resulted in" tens of thousands of data-collection requests have produced few criminal charges directly related to terrorism or espionage, according to the inspector general's report."


Whether or not the JD screwed up has (none / 0) (#9)
by jimakaPPJ on Wed Mar 31, 2010 at 11:09:17 PM EST

nothing to do with the facts on the ground.

But hey, what does it matter that the FBI wouldn't look at the hard drive of a computer owned by one of the 9/11 bunch..... before 9/11?

I recognize it is a tough call. But just as I cut the Feds some slack I also think we need a better way than what we have been doing.

Isn't the goal protection of the country and its citizens? Not "gotchas" from both sides?


tens of thousands of (5.00 / 1) (#10)
by cawaltz on Thu Apr 01, 2010 at 08:43:51 AM EST

needless records were reviewed without a warrant and all you have to say is SO WHAT? Perhaps you are okay with having your privacy invaded so that the "state can take a peek." Myself I prefer the good old fashioned American position that the government has no right in my business unless I have done something wrong to warrant it. Then again I'm a strong supporter of the founder whose statement was "those who would give up liberty for security, deserve neither." I'm not much into police states.


: Neither am I (none / 0) (#13)
by jimakaPPJ on Thu Apr 01, 2010 at 03:52:43 PM EST

But I'm not into letting 1000's of innocents get killed either.
There has to be a better way than the adversarial system we now have when it comes to terrorists.

: "I'm not much into police states." (none / 0) (#16)
by diogenes on Thu Apr 01, 2010 at 11:10:00 PM EST

Putting police states into a question of Bush wiretapping terrorists without a warrant is like invoking Nazis in an internet discussion. It is an insult to people who actually live in police states.

What DOES it matter? (none / 0) (#11)
by Trickster on Thu Apr 01, 2010 at 02:59:09 PM EST

what does it matter that the FBI wouldn't look at the hard drive of a computer owned by one of the 9/11 bunch..... before 9/11?

Well . . . unless there's a real argument behind it, based on facts, it doesn't matter at all from my book. You're basically charging the FBI with failing to apprehend criminals before they committed the crime. It's not as if the FBI was faced with the question "Should we look at this hard drive that belongs to some people who are about to murder thousands and cause billions of dollars of property damage?" Such a question would be a no-brainer.

But it's seriously misleading to pose that question in retrospect as if it were operative at the time. At the time, the real question was how to divvy out limited investigative resources among a virtually unlimited number of potential facts and situations that could conceivably be investigated. And I'm sure they took their best shot, as they generally do, but you are just bound to make mistakes in such a scenario.

I do believe it would be possible to endow the FBI with sufficient powers to enable them to prevent most crime. But 1984 would look like Woodstock by comparison. Law enforcement officers throughout history have been vigorous in utilizing the full extent of whatever powers they are granted, so the general principle has always been to give government sufficient powers to reasonably protect the public against crime . . . and no more.

In that context, do you have an argument as to why warrantless wiretaps are necessary? I think a starting assumption is that warrantless wiretaps represent a very significant addition to the powers of law enforcement individuals to gather previously-private information about citizens; if you don't agree with that assumption, please say why not.


The problem is, these aren't criminals (none / 0) (#12)
by jimakaPPJ on Thu Apr 01, 2010 at 03:50:45 PM EST

These people are terrorists.

Until you recognize that we can have no discussion because while letting a guilty 7-11 robber go free because the police screwed up is fine.

Failing to look at a hard drive that would have prevented 9/11 is not acceptable.


"These are terrorists" (none / 0) (#14)
by Trickster on Thu Apr 01, 2010 at 06:37:05 PM EST

Bunch of questions about your reply, but I'll save 'em all except this one:

What do you mean by "these?" "These" what? Who is "these?"

Look at the question in terms of your previous example regarding the FBI not looking at some hard drive before 9/11. How was the FBI supposed to know it was a "terrorist" hard drive as opposed to a regular hard drive? Do you think the FBI should go barging in to comb through everybody's hard drives? If not, then what are the standards?

This is not just a little nit picking at your example. It's fundamental. When you're talking about preventing future terrorist activity, you're necessarily in a realm where the government has to act based on guesswork.

As I said above, it has been a fundamental tenet of all more-or-less free modern societies that the powers of the government to investigate and prevent bad acts is constrained to what is necessary and reasonable. There is a very very strong incentive NOT to loosen the reins on the government's investigative power except for very good reasons.

That's where your argument falls through based on lack of specificity. What is the goal? What are the dangers inherent in those goals? What exactly are you proposing? How does it balance achieving its goal against the inherent dangers?


You know, your claim about people willing to (none / 0) (#15)
by jimakaPPJ on Thu Apr 01, 2010 at 09:49:06 PM EST

die.. blah blah... is typical Libertarian Left.. usually mouthed by people who have never had the opportunity to die for "freedom." Their freedom or others.

My point was, is and will be that when it comes to terrorism what we are currently doing doesn't work well.

Now, if you have some suggestions on how we can improve things, let me know.

But spare me the chest thumping. I had too much of that long ago.


: Talk to me, not past me to some stereotype (none / 0) (#17)
by Trickster on Mon Apr 05, 2010 at 03:42:44 PM EST

What "chest thumping?" Your argument might be a little clearer if you actually talked about what I said, which you don't. Instead you just go straight for making assumptions about me, who you do not know at all. "Libertarian left?" That would be pretty hilarious to people who actually know me.
Now, if you have some suggestions on how we can improve things, let me know.
Improve what? I asked you to be specific and tell me what you are talking about, but you did not do so. The only specific you have offered in this whole conversation was something about a pre-9/11 hard drive, and I tried to discuss that but you never answered my questions or said what YOU would have done about it.
As for me, while there is always room for improvement in just about anything, I think we have historically done a decent job of balancing security and civil liberties. As I've said, I think it WOULD be possible to pretty much prevent crime and terrorism, but 1/3 of the population would be security personnel spying on the other 2/3. It would be tremendously expensive, tremendously invasive, and it would tremendously ruin everything for everybody and would tremendously suck.
So I don't see where I should be proposing something to do about "it," whatever "it" may be. I'm not the one complaining about the status quo.

usually mouthed by people who have never had the opportunity to die for "freedom."
My apologies, but I can't let this pass without a little ridicule.
Let's suppose for the sake of argument that someone has had an opportunity to "die for `freedom`". Well, either one of two things happened: (1) they died for freedom, or (2) they chose not to take the opportunity.
Either way, I don't think those are really the folks you want to listen to, is it? Dead people or cowards? The only people that leaves is those who haven't had the opportunity to die for freedom.
Oh, and by the way, I AM a Vietnam-era veteran. U.S. Army Security Agency, 05H Morse Code Interceptor, Top Secret clearance with cryptographic access, Honorable Discharge. What's YOUR service record, since we're getting personal here?