Judge rebukes Bush admin on warrantless spying
Nick Juliano
Published: Thursday July 3, 2008

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A federal judge in California has rejected President Bush's stated view that he is authorized to ignore the law and institute warrantless surveillance of Americans.

US District Court Judge Vaughn R. Walker confirmed that the 30-year-old Foreign Intelligence Surveillance Act is the "exclusive" means for domestic intelligence collection. Walker, chief judge for the Northern District of California, is hearing legal challenges to the National Security Agency's warrantless wiretapping program as well as lawsuits against telecommunications companies AT&T and Verizon.

Walker's latest finding comes in the case of an Oregon charity that says it was subject to a warrantless NSA wiretap, the New York Times reports.

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.”

The Electronic Frontier Foundation, which is representing plaintiffs in lawsuits before Walker, praised the decision on its blog.

"The Court rejected the expansive view of executive power promoted by the government, holding that the President's authorities under Article II of the Constitution do not give him the power to overrule FISA," wrote EFF's Kurt Opsahl.

The "bad news," though, is that Walker ultimately ruled that the charity, Al-Haramain Islamic Foundation, ultimately was unable to sufficiently show they were "aggrieved" under FISA. The judge did allow the group to re-file its case with more information.

EFF said the ruling "undermines" arguments in favor of granting legal immunity to telecommunications companies that are subject to separate lawsuits. A FISA update bill in the Senate would effectively eliminate those suits.

Walker ruled against a "routine" dismissal of lawsuits based on state secrets privilege. In a lawsuit against AT&T, EFF is relying on internal company documents -- obtained from a whistle-blower -- it says show the company gave the NSA unfettered access to its networks. Such documents have not been declared a state secret, so the group says Walker's ruling could help that case.

Recognizing that a Congressional endorsement of telecom immunity seems inevitable, though, Wired's David Kravets says the ruling doesn't have much impact.

"If the [FISA] bill languishes or is scuttled, Walker's ruling could embolden the EFF's suit, which is also before Judge Walker," he writes. "If the legislation passes, Walker's ruling is irrelevant insofar as lawsuits targeting telecoms' alleged complicity with the Bush administration are concerned."