By Frank James
The subject of warrantless wiretaps by the National Security Agency hasn't been much in the news of late, being a controversy that essentially ended, for all intents and purposes, with the Bush Administration.
But it was back in the news Wednesday. U.S. District Court Judge Vaughn Walker in San Francisco ruled that the spy agency broke the law when, without a warrant, it tapped phone conversations in 2004 between an Islamic charity that no longer exists and its two lawyers.
As NPR's Martin Kaste reported in his script for the network's newscast:
KASTE: When it was revealed four years ago that the government was tapping domestic phones without the usual national-security warrants, dozens of lawsuits were filed. But only one, filed by the lawyers of a now-defunct Muslim charity called "Al Haramain,"survived long enough to reach an actual ruling on the merits.
JON EISENBERG (Plaintiff's lead attorney): We won.
KASTE: Jon Eisenberg is the lead attorney for the plaintiffs. He says federal court judge Vaughn Walker's decision today is unambiguous:
JON EISENBERG: The judge has said two things: One, the plaintiffs in this case were subjected to warrantless electronic surveillance. Two, it was illegal.
KASTE: Congress had created a system to allow spy agencies to get special warrants from a secret court, and with this ruling, Judge Walker says the Bush Administration should have availed itself of that system. No damages have yet to be determined, and lawyers for the Obama Administration have not yet decided whether to appeal.
The Electronic Frontier Foundation which has followed the case closely for year has a very informative article on Wednesday's decision.
Today's order is the first decision since ACLU v. NSA to hold that warrantless wiretapping by the National Security Agency was illegal. The decision in ACLU v. NSA was overturned on other grounds in 2007, and the focus of the government's litigation strategy since then has been to avoid having any court rule on the merits of the issue.
The court's thorough decision is a strong rebuke to the government's argument that only the Executive Branch may determine if a case against the government can proceed in the courts, by invoking state secrets. The Obama Administration adopted this "state secrets privilege" theory from the Bush Administration's legal positions in this and other warrantless wiretapping cases.
The government's overreaching claim of unbridled executive power finally backfired today in the Al-Haramain case. As the court wrote in its order, "Under defendants' theory, executive branch officials may treat FISA as optional and freely employ the SSP [state secrets privilege] to evade FISA, a statute enacted specifically to rein in and create a judicial check for executive branch abuses of surveillance authority."
The court, although noting the government's "impressive display of argumentative acrobatics," flatly rejected this theory. "Defendants could readily have availed themselves of the court's processes to present a single, case-dispositive item of evidence at one of a number of stages of this multi-year ligitation: a FISA warrant. They never did so." Therefore, "for purposes of this litigation, there was no such warrant for the electronic surveillance of any of plaintiffs," and the surveillance therefore violated FISA.