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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."
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.
My work here is dung.
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.
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.
Karma: Excellent. 15 moderator points expire sometime.
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.
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.
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.
You can never go home again... but I guess you can shop there.