Another Reason To Stand Tall on FISA

Last November (as noted here) a federal appeals court ruled that a branch of the al-Haramain Islamic charity in Oregon could not use a call log that it had accidentally received from the Treasury Department as evidence in a lawsuit that it had been illegally wiretapped by our government (al-Haramain had been officially designated as a terrorist organization with links to al Qaeda). The “state secrets” privilege was used as a Bushco defense at the time.

Even though this ruling basically torpedoed the case of the charity against our government, al-Haramain challenged the so-called “state secrets” privilege, and the 9th Circuit Court of Appeals asked U.S. District Court Judge Vaughn Walker to determine the technical question of whether the state secrets privilege conflicts with FISA (noted here).

Well today, we have our answer (here)…

WASHINGTON — A federal judge in California said Wednesday that the wiretapping law established by Congress was the “exclusive” means for the president to eavesdrop on Americans, and he rejected the government’s claim that the president’s constitutional authority as commander in chief trumped that law.

…

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.

“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.

OK Senate Dems (and Our Man Arlen? Dare I hope?), here’s yet another legal opinion in favor of sticking to your guns on the issue of telco immunity and ensuring that any changes to FISA law mandate court oversight independent of any other branch of government (and to sign Russ Feingold's petition on this, click here).

By the way, there was a great article in The New Yorker about all of this from last April, but my browser crashes every time I access their site. If you’re running Firefox or anything else besides IE, you may have better luck tracking it down.

Update 7/3/08: What Kagro X sez...