Earlier this evening, I finished reading the 45-page .pdf of the District Court’s decision in the Islamic charity Al-Haramain’s illegal warrantless surveillance lawsuit against the U.S. government. Judge Vaughn Walker ruled that the Bush administration’s monitoring of the organization’s phone conversations, which were conducted under the formerly secret NSA warrantless surveillance program, violated Al-Haramain’s constitutional rights under the Federal Intelligence Surveillance Act (FISA).
As Marcy Wheeler explains, the Department of Justice effectively agreed, not just that Al-Haramain’s FISA rights were violated, but that the NSA electronic surveillance program itself is illegal:
Walker is basically saying, “Well, government, if you won’t give us any evidence to prove you legally wiretapped al-Haramain, and given all the evidence they’ve presented proving they were wiretapped, then they win!”
Here’s his argument. The government had a way to defend against al-Haramain’s case directly, in camera, but they refused to avail themselves of it.
In FISA proceedings, 50 USC § 1806(f) provides a procedure by which the government may do this in camera, thus avoiding the disclosure of sensitive national security information. See In Re NSA Telecom Litigation, 564 F Supp 2d at 1131-35. Defendants declined to avail themselves of section 1806(f)’s in camera review procedures and have otherwise declined to submit anything to the court squarely addressing plaintiffs’ prima facie case of electronic surveillance.
Walker goes onto explain that, particularly given the government’s refusal to use the means by which Congress dictated that such review should be done, the government has a burden to prove it had a warrant to wiretap al-Haramain–a burden it has not met.
In a later post, Marcy explains why she believes the government is unlikely to appeal the ruling.
Glenn Greenwald makes an important point about the legal defense strategy adopted by the Obama administration’s Justice Department (emphasis is Glenn’s):
Although news reports are focusing (appropriately) on the fact that Bush’s NSA program was found to be illegal, the bulk of Judge Walker’s opinion was actually a scathing repudiation of the Obama DOJ. In fact, the opinion spent almost no time addressing the merits of the claim that the NSA program was legal. That’s because the Obama DOJ — exactly like the Bush DOJ in the case before Judge Taylor — refused to offer legal justifications to the court for this eavesdropping. Instead, the Obama DOJ took the imperial and hubristic position that the court had no right whatsoever to rule on the legality of the program because (a) plaintiffs could not prove they were subjected to the secret eavesdropping (and thus lacked “standing” to sue) and (b) the NSA program was such a vital “state secret” that courts were barred from adjudicating its legality.
Those were the arguments that Judge Walker scathingly rejected. All of the court’s condemnations of the DOJ’s pretense to imperial power were directed at the Obama DOJ’s “state secrets” argument (which is exactly the same radical and lawless version, as TPM compellingly documented, used by the Bush DOJ to such controversy). From the start, the Obama DOJ has engaged in one extraordinary maneuver after the next to shield this criminal surveillance program from judicial scrutiny. Indeed, their stonewalling at one point became so extreme that the court actually threatened the Obama DOJ with sanctions. And what TPM calls the Obama DOJ’s “Bush-mimicking state secrets defense” has been used by them in one case after the next to conceal and shield from judicial review a wide range of Bush crimes — including torture, renditions and surveillance. As the Electronic Frontiers Foundation put it: “In Warrantless Wiretapping Case, Obama DOJ’s New Arguments Are Worse Than Bush’s.”
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