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Federal Court: Bush and Obama Bypassing of FISA Ruled Illegal

by Susan Marie Kovalinsky | April 1, 2010 at 08:34 am

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Federal Justice Vaughnn Walker Rules Bush and Obama Warrantless Wiretapping and bypassing FISA broke Federal Law

Al-Haramain Ilslamic Foundation attorneys illegally probed in domestic spying program ; Expanded Powers post 9-11 not justified

On Wednesday a federal judge ruled that under the Bush Administration's anti-terror program, federal law was violated when two Oregon attorneys working for an Islamic charity were wire-tapped without warrant.

U.S. District Judge Vaughn Walker - the judge in the famous historic Proposition 8 trial in San Francisco's high court - rejected statements set forth by both Presidents Bush and Obama that state secrets privilege shields them from lawsuits filed by American citizens who had been probed and tapped under a controversial Patriot Act domestic spying program launched after 9/11.

Government lawyers are reviewing the ruling, and it is unclear at this time whether or not President Obama will decide to appeal.

Barring an appeal, this ruling will enable the attorneys of Al-Haramain Islamic Foundation to pursue monetary damages under federal law which protects from illegal wiretapping and surveillance.

Al-Haramain was placed under surveillance after Sept. 11, 2001. Law enforcement officials did so without seeking a warrant from the court created by the 1978 Foreign Intelligence Surveillance Act, or FISA.

Post 9-11 Patriot Act and War on Terror overstepped bounds, Federal Justice says

The Bush administration justified bypassing the FISA statute due to its post-9/11 "War on Terror". It wanted the lawsuit dismissed on grounds of national security morale.
The Obama Administration surprised and angered civil libertarians when it called for a continuation of Bush's claims ; most advocates had expected Obama would diverge from the policy

The American Civil Liberties Union and other groups have repeatedly attempted to take the government to trial over warrantless wiretapping but have been thwarted by federal court rulings that they lacked standing to sue unless their individual privacy rights had been violated.
In his 45-page ruling, Walker alluded to the "obvious potential for governmental abuse and overreaching inherent in the defendants' theory of unfettered executive-branch discretion." The judge also cited the government's "impressive display of argumentative acrobatics" in rationalizing its actions.

Jon Eisenberg, attorney for the foundation and lawyers Wendell Belew and Asim Ghafoor, hailed the ruling of Justice Walker as rejecting the Bush administration's claims to expanded powers in the war on terror and the Obama administration's continued support of that policy.

Constitutional law experts emphasized that attorneys of both Bush and Obama did not attempt to dispute charges of warrant-less surveillance. They claimed only that it was justified under the war on terror. The by-passing of the FISA statutes is key in this case.

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nanute

at 08:57 on April 1st, 2010

The by-passing of the FISA statutes is key in this case. I don't know if that is necessarily the case here. It would seem that the government was arguing that it could bypass the FISA requirements using the State Secrets Protection. Judge Walker has issued a summary judgment for the plaintiffs that the defendants were in violation of FISA. Part of Judge Walkers ruling:

"Under defendants’ theory, executive branch officials may treat FISA as optional and freely employ the SSP to evade FISA, a statute enacted specifically to rein in and create a judicial check for executive-branch abuses of surveillance authority.

[snip]

In an impressive display of argumentative acrobatics, defendants contend, in essence, that the court’s orders of June 3 and June 5, 2009 setting the rules for these cross-motions make FISA inapplicable and that “the Ninth Circuit’s rulings on the privilege assertion therefore control the summary judgment motions now before the Court.” Doc #672/105 at 6. In other words, defendants contend, this is not a FISA case and defendants are therefore free to hide behind the SSP all facts that could help plaintiffs’ case. In so contending, defendants take a flying leap and miss by a wide margin."

YankeeJim

at 11:46 on April 1st, 2010

They both use tp too.

nanute

at 12:16 on April 1st, 2010

Toilet Paper?

nanute

at 13:18 on April 1st, 2010

Here's more on the issue from Glenn Greenwald: Federal District Judge Vaughn Walker yesterday became the third federal judge -- out of three who have considered the question -- to find that Bush's warrantless eavesdropping program was illegal (the other two are District Judge Anna Diggs Taylor and 6th Circuit Appellate Judge Ronald Gilman who, on appeal from Judge Taylor's decision, in dissent reached the merits of that question [unlike the two judges in the majority who reversed the decision on technical "standing" grounds] and adopted Taylor's conclusion that the NSA program was illegal).

That means that all 3 federal judges to consider the question have concluded that Bush's NSA program violated the criminal law (FISA). That law provides that anyone who violates it has committed a felony and shall be subject to 5 years in prison and a $10,000 fine for each offense. The law really does say that. Just click on that link and you'll see

merlingraycat

at 18:52 on April 1st, 2010

Interesting that Obama is following Bush II in this and other things i.e., continuing the war(s) and now drilling for oil in the good old U.S.A.

Interesting also that supposedly Obama was one of the few (according to him) who was opposed to the war(s) and for alternative energy. Was he lying then or now?