Analysis: NSA Spying Judge Defends Rule of Law, Congress Set to Strip His Power
by Ryan Singel Wired July 4, 2008
Just days before the Senate will convene to give a final blessing to President Bush's secret, warrantless wiretapping program, a federal court judge ruled that his legal justification for the surveillance has no legal merit.
He's the same judge Congress is trying to save the nation's telecoms, such as AT&T, Verizon and Sprint, from having to face in court.
Late Wednesday, U.S. District Chief Judge Vaughn Walker issued a ruling (.pdf) in a case against the government alleging illegal spying, finding that in 1978 Congress had clearly set out the rules for wiretapping inside the United States and that Bush's claims to have inherent authority outside of those rules did not pass Constitutional muster.
Congress appears clearly to have intended to -- and did -- establish the exclusive means for foreign intelligence surveillance activities to be conducted. 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.
Walker, the chief judge of the Northern District of California, affirmed that the Foreign Intelligence Surveillance Act is the exclusive legal method for conducting surveillance inside the United States against suspected spies and terrorists. The Bush Administration argues that Congress's vote to authorize military force against Al Qaeda and the president's inherent war time powers were exceptions to the exclusivity provision.
Not so, according to Walker:
This provision and its legislative history left no doubt that Congress intended to displace entirely the various warrantless wiretapping and surveillance programs undertaken by the executive branch and to leave no room for the president to undertake warrantless surveillance in the domestic sphere in the future.
As Threat Level pointed out last night, the ruling is likely to have little real consequence other than embarrassing Congress for failing to have the courage to stand up to defend the laws it itself passed. Instead of holding hearings and sending subpoenas, Congress is set to largely legalize dragnet surveillance being set up inside American telecom infrastructure and to make it very clear that they are serious about stopping warrantless wiretapping, they are adding exclamation points to the exclusivity provision.
They will also likely give retroactive amnesty to telecom companies that agreed to illegal and sweeping surveillance requests from the same government agencies that dole out fat secret contracts to the very same telecom companies.
So thanks to Congress's pending meddling with the courts in capitulation to the President, Vaughn Walker's ruling is the closest we will likely come to a judicial ruling on the limits of presidential power to spy on Americans.
Judge Vaughn Walker is no raging San Francisco liberal. He was appointed to the bench by President George H W Bush, and is known for his intellect and libertarian streak.
Walker also ruled that the government's claims that the case would endanger national security did not overrule the provisions of law that let a spied-upon person sue the government for breaking the law.
But Walker dismissed the underlying case, which was based on a Top Secret document accidentally provided to American lawyers for a Muslim charity that the government was in the process of designating as a terrorist organization. The plaintiffs have been barred from using the document to prove they were spied on and thus can not prove standing. If they can find another way to prove they were spied on, they can refile the suit.
He's the same judge who's overseeing all the cases against the telecoms.
When the Senate votes Tuesday, they are voting to keep Judge Walker from examining whether the nation's largest telecoms massively violated federal privacy laws by helping the government spy on Americans.
The vote for or against amnesty not about whether telecoms participate in the future. In the future, they are supposed to get court orders -- that's the promise of the bill.
The planned July 8 vote is whether or not Americans can get justice for a violation of federal law, or whether some of the nation's largest companies -- and by extension, the nation's highest elected officials -- are above the law.