Yesterday, Judge Vaughn R. Walker handed down a ruling that the NSA’s warrantless wiretapping of Al Haramain, and two of its lawyers, in 2004 was illegal.
At first blush, it may seem that Judge Walker held the NSA warrantless wiretapping program to be illegal. Especially when The New York Times‘ lede reads:
A federal judge ruled Wednesday that the National Security Agency’s program of surveillance without warrants was illegal, rejecting the Obama administration’s effort to keep shrouded in secrecy one of the most disputed counterterrorism policies of former President George W. Bush.
and The Washington Post matches that with:
In the strongest legal repudiation yet of the George W. Bush administration’s program of warrantless wiretapping, a federal judge in San Francisco ruled Wednesday that the National Security Agency acted illegally by eavesdropping on the phone conversations of two American lawyers and an Islamic charity.
Wrong both times, though.
Thanks to the way the Bush and Obama administrations chose to defend the lawsuit, Judge Walker’s judgment really doesn’t apply to the NSA’s warrantless wiretapping program as a whole, but only to this one isolated instance.
The plaintiffs had contended that the NSA wiretapped them without warrants, and that this was a clear violation of the Foreign Intelligence Surveillance Act, which forbids the monitoring of Americans’ e-mails or phone calls without warrants.
While the Bush administration had consistently claimed “that the president’s wartime powers enabled him to override the FISA statute”, they were apparently not willing to put this argument to a legal test.
So in defending the lawsuit, the Justice Department did not argue that the warrantless wiretapping in question — and the NSA’s entire program, by implication — was legal because the president’s wartime powers trump the FISA statute. In fact, they didn’t really defend the lawsuit at all, in the conventional sense. They neither presented proof that they had a secret warrant, and nor did they present any argument that the wiretapping was legal even without a warrant.
They only sought to have the lawsuit summarily dismissed by invoking the state secrets privilege.
In effect, the government was arguing that Judge Walker — or any other federal judge — should agree not to even try to determine whether President Bush broke the law because just the attempt to make that determination would compromise state secrets and national security. In effect, the government was arguing that the ability to hide behind the wide skirts of the state secrets privilege gives the President expansive rights to ignore whatever laws he chooses without ever being held accountable.
It was only this argument that Judge Walker rejected in finding for the plaintiffs:
The ruling by Judge Walker, the chief judge of the Federal District Court in San Francisco, rejected the Justice Department’s claim — first asserted by the Bush administration and continued under President Obama — that the charity’s lawsuit should be dismissed without a ruling on the merits because allowing it to go forward could reveal state secrets.
The judge characterized that expansive use of the so-called state-secrets privilege as amounting to “unfettered executive-branch discretion” that had “obvious potential for governmental abuse and overreaching.”
That position, he said, would enable government officials to flout the warrant law, even though Congress had enacted it “specifically to rein in and create a judicial check for executive-branch abuses of surveillance authority.”
Because the government merely sought to block the suit under the state-secrets privilege, it never mounted a direct legal defense of the N.S.A. program in the Haramain case.
Judge Walker did not directly address the legal arguments made by the Bush administration in defense of the N.S.A. program after The New York Times disclosed its existence in December 2005: that the president’s wartime powers enabled him to override the FISA statute.
Once Judge Walker rejected the state secrets privilege defense, the judgment hinged entirely on whether the plaintiffs could prove beyond a reasonable doubt that they had, in fact, been wiretapped. Since the government neither produced a warrant nor offered an argument that a warrant wasn’t necessary, the wiretapping would then be deemed to be illegal.
By contrast, the Haramain case was closely watched because the government inadvertently disclosed a classified document that made clear that the charity had been subjected to surveillance without warrants.
Although the plaintiffs in the Haramain case were not allowed to use the document to prove that they had standing, Mr. Eisenberg and six other lawyers working on the case were able to use public information — including a 2007 speech by an F.B.I. official who acknowledged that Al Haramain had been placed under surveillance — to prove it had been wiretapped.
Judge Walker’s opinion cataloged other such evidence and declared that the plaintiffs had shown they were wiretapped in a manner that required a warrant. He said the government had failed to produce a warrant, so he granted summary judgment in favor of the plaintiffs.
So that’s all the judgment represents. Judge Walker found that the plaintiffs were wiretapped in a manner that requires a warrant under FISA. Everything else was successfully pushed under the carpet by the Bush-Obama strategy of deliberately not allowing the NSA program of warrantless wiretapping to be put on trial.
And it looks very much like we may never get to see a court rule on whether it was legal for President Bush to order the NSA to ignore FISA and engage in the warrantless wiretapping of Americans.
Previous posts about the Al Haramain case:
13 February, 2009 — Because Once Is Not Enough
3 March, 2009 — Out-Bushing Bush’s Department Of Justice
25 March 2009 — How Awesome Can the Obama Administration Get?