Judge Finds NSA Wiretapping Program Illegal

Hugh Pickens writes "The NY Times reports that a federal judge has ruled that the NSA's warrantless surveillance program was illegal, rejecting the Obama administration's effort to keep one of Bush's most disputed counterterrorism policies shrouded in secrecy. Judge Vaughn R. Walker ruled that the government had violated a 1978 federal statute requiring court approval for domestic surveillance when it intercepted phone calls of Al Haramain, a now-defunct Islamic charity in Oregon, and of two lawyers who were representing it in 2004. Declaring that the plaintiffs had been 'subjected to unlawful surveillance,' the judge said that the government was liable to pay them damages."

Comments

Particular Taps, Not Entire Program

[eldavojohn]

Judge Finds NSA Wiretapping Program Illegal

Versus NYTimes title:

Federal Judge Finds N.S.A. Wiretaps Were Illegal

See the difference? The program wasn't ruled illegal. That would be huge. It's the fact that these people are American citizens and there was no court order to wiretap them and they found out about it. For most of us it's just the first two. And from the article:

The overhauled law, however, still requires the government to obtain a warrant if it is focusing on an American citizen or an organization inside the United States. The surveillance of Al Haramain would still be unlawful today if no court had approved it, current and former Justice Department officials said. But since Mr. Obama took office, the N.S.A. has sometimes violated the limits imposed on spying on Americans by the new FISA law. The administration has acknowledged the lapses but said they had been corrected.

So this isn't the great news with a big change that you were hoping for. It just means that if you can prove you were wrongfully wiretapped then you get restitution. Problem is that you have no proof. So you can either lay a trap for the NSA (not smart) or complain to your representative or do nothing.

Re:Particular Taps, Not Entire Program

[Anonymous Coward]

I have not read the Judge's opinion, so I do not know which was actually held, but though the article title may have only stated the Wiretaps were illegal, the first sentence of the article states that "A federal judge ruled Wednesday that the National Security Agency’s program of surveillance without warrants was illegal." As in the entire program, so in your words, huge. Without a warrant, this type of action is illegal. And the entire program that was in place consisted of surveillance without warrants. According to the article, the program has largely changed to comply with the warrant requirement, and where it has not it is still illegal. Of course they can still continue to run this illegally, but at least now we citizens can do something about it. And yes, for you as an individual to get restitution you must prove that you were individually armed. But as they would be committing illegal activity other law enforcement entities can enforce the law against these individuals. Previous to this decision, it was not illegal, and so only affected citizens could bring suit to attempt to get the actions declared illegal. To me that seems to be a pretty big change and something to celebrate.

Re:Particular Taps, Not Entire Program

[Paradise Pete]

See the difference? The program wasn't ruled illegal.

The article says "A federal judge ruled Wednesday that the National Security Agency's program of surveillance without warrants was illegal"

Re:Particular Taps, Not Entire Program

[Derek Pomery]

I was making several points there.

One was that a set of non-partisan posts were divided between the 2 parties. There was no competition.

The other was that voters were not aware they were voting for a Republican judge even if they were strongly opposed to Republicans

The final one was that it wasn't about selling anything. They simply handed people sample ballots at the station and people copied them down. In essence, they were voting for the entire Democratic apparatus, which is a difficult momentum to overcome.

And finally, we certainly haven't given up. We keep trying, we keep fielding candidates. I'm just noting that simply saying that people shouldn't complain since they elected those people is too simplistic a response.

Ranked voting will probably help some, as well possibly proportional representation.

Re:Particular Taps, Not Entire Program

[mcgrew]

Not you personally, but the people who voted for their respective party's [candidate].

The corporate dollars trump my vote, and those dollars go to both major party candidates. The corporate media won't report on any candidate that isn't Republican or Democrat.

Maybe handing out fliers on election day, outside the polling areas?

In my state you can't do that within 100 feet (30 meters) of a polling place, but it does no good anyway. The Ron Paul yard signs were thick last election, but McCain beat him handily. And what's one flyer going to do against every newspaper, radio, and TV outlet in the country?

We have the best legislators money can buy.

Enough said

[muckracer]

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

OMG Ponies!

[thomasdz]

This ruling is the second time a federal judge has declared the program of wiretapping without warrants to be illegal. However a 2006 decision by a federal judge in Detroit, was reversed on the grounds that those plaintiffs could not prove that they had been wiretapped and so lacked legal standing to sue.
The new law, however, still requires the government to obtain a warrant if it is focusing on an American citizen or an organization inside the United States. The surveillance of Al Haramain would still be unlawful today if no court had approved it

by the way I like the new Slashdot colour scheme.

All that tech still seems so distant

[AHuxley]

As with the "1978 federal statute requiring court approval for domestic surveillance"
Read what President Carter had to say:
http://www.cnss.org/fisa.htm ftp://cnss.org/Carter.pdf
Its interesting how todays pundits, talking heads and NSA types seem to have missed the 'all', 'US persons' and 'electronic' part.
But never fear Mr or Ms NSA worker, the US gov will cover you by changing the definition of a US person to a domestic terrorist.
http://www.opencongress.org/bill/111-s3081/show
With the magic T word, all domestic US protections are off :)
Its like Tbilisi or Budapest in 1956 - everybody needs a telco tap and a drone.

Damages? Fruit-of-Poisoned vine! Appeal

[redelm]

I'm not sure exactly what damages they can claim. Perhaps lawyers fees. More important is the actual finding -- if the surveillance was illegal, it falls under the "Fruit of the Poisoned Vine" doctrine, and and evidence gathered as a consequence becomes inadmissible in any criminal action.

This the a mjaor finding, and I expect the Feds to appeal. They have lots of lawyers and do not worry about the cost.

Unfortunately, this doesn't mention wiretaps

[jjo]

The literal words of the Constitution do not cover electronic communications. It's only judicial interpretation over the years that has established the idea that "persons, houses, papers, and effects" implies electronic communication as well. However, this judicial interpretation has not included constitutional protection of many international communications or domestic communications with agents of foreign powers. (Think about it: why was the FISA statute needed to protect these communications if they were already protected by the Constitution?)

The legal question that Obama (following in Bush's footsteps) is posing is this: does the Congress, through the FISA legislation, have the right to restrict the President's power, as Commander-in-Chief, to conduct foreign intelligence surveillance? It's really not as obvious a question as many people think.

Quoting the Constitution, far from ending the discussion, actually points out the inherent problem: how should an 18th-century document be applied in the 21st century? Supreme Court precedent (which, we know from the campaign-finance case, must never, ever be changed) provides much less Constitutional protection from electronic intercepts than most people realize.

Re:Excellent. Now where are the criminal charges?

[Martin Blank]

Pretty much. One of the complaints about the wiretaps (among other programs) is that the FISA court, which has only denied warrants in the past a handful of times, was not consulted even after the fact, and there is a reasonably long period of time in which to get a retroactive warrant. The Bush administration said they felt that they could not trust the FISA court to not talk about it, although any judge nominated to the court undergoes an extremely thorough background check and AFAIK no leak has ever been traced to a FISA judge. More likely, they knew that the FISA court, accepting though it is of Executive Branch decisions, was probably going to be unhappy with these programs.

Re:"The government" is liable to pay damages?

[Cajun Hell]

Bush Sr., the guy who asked for CALEA? Bush Sr., the guy who defended our country after Iraq invaded us, oops I mean, took us to war for Kuwaiti interests?

Clinton, the guy who signed CALEA? Clinton, they guy who signed DMCA?! Clinton, the guy who signed eternal-copyright extension?

Those aren't good presidents. Every president ends up making us long for the previous guy, and always to our amazement, i.e. "I can't believe I miss whatsisface, because I hated him," but that doesn't mean whatsisface was a good president. Every 4 years, we lower our standards so that we can vote for one of the Republicrat candidates without feeling too ashamed about it.