National Security Agency wiretaps were unlawful, U.S. judge rules

Meanwhile in Canada the CSIS in the name of national security routinely conducts wiretaps without warrants

By Charlie Savage and James Risen
The New York Times

WASHINGTON — 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.

In Canada, those with decades long analysis of the rogue institution, know that the CSIS routinely conducts wiretaps without warrants. These wiretaps, including computer surveillance, are often done with no better justification than malicious amusement. Canada Post’s snailmail is also subjected to illegal snooping.

When the CSIS is seriously challenged they will, again routinely, destroy the evidence.

In a 45-page opinion, Judge Vaughn Walker ruled that the U.S. 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 attorneys representing it in 2004. Declaring that the plaintiffs had been "subjected to unlawful surveillance," the judge said the government was liable to pay them damages.

Walker's ruling marks the first time a federal judge has declared, in a case where the government was known to have wiretapped a private citizen, that the program of wiretapping without warrants is illegal. It delivered a sharp blow to the surveillance efforts which Bush secretly authorized shortly after the terrorist attacks of Sept. 11, 2001.

Under the program, the National Security Agency monitored Americans' international e-mail messages and phone calls without court approval, even though the Foreign Intelligence Surveillance Act, or FISA, required warrants.

The Justice Department said it was reviewing the decision and had made no decision about whether to appeal.

The ruling by Walker, the chief of the U.S. District Court in San Francisco who's the trial judge in the Proposition 8 case, rejected the Justice Department's claim — first asserted by the Bush administration and continued under President Barack 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 NSA program in the Haramain case.

Walker did not directly address the legal arguments made by the Bush administration in defense of the NSA 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. But lawyers for Al Haramain were quick to argue that the ruling undermined the legal underpinnings of the war against terrorism. One of them, Jon Eisenberg, said Walker's ruling was an "implicit repudiation of the Bush-Cheney theory of executive power."

"Judge Walker is saying that FISA and federal statutes like it are not optional," Eisenberg said. "The president, just like any other citizen of the United States, is bound by the law. Obeying congressional legislation shouldn't be optional with the president of the U.S."

A Justice Department spokeswoman, Tracy Schmaler, noted that the Obama administration had overhauled the procedures for invoking the state-secrets privilege, requiring senior officials to personally approve any assertion before lawyers could make it in court. She said that would ensure that the privilege was invoked only when "absolutely necessary to protect national security."

The ruling is the second time a federal judge has declared the program of wiretapping without warrants to be illegal. But a 2006 decision by a federal judge in Detroit, Anna Diggs Taylor, was reversed on the grounds that those plaintiffs could not prove that they had been wiretapped and so lacked legal standing to sue.

Several other lawsuits filed over the program have faltered because of similar concerns over standing or because of immunity granted by Congress to telecommunications companies that participated in the NSA program.

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, Eisenberg and six other lawyers working on the case were able to use public information — including a 2007 speech by an FBI official who acknowledged that Al Haramain had been placed under surveillance — to prove it had been wiretapped.

31 March 2010 — Return to Cover