Yesterday Chief Judge Vaughn Walker of the Northern District of California issued an opinion in Al Haramain v. Bush, one of the cases challenging the NSA warrantless wiretapping program. EFF has the decision, which is a clear a repudiation of what the Democratic Congress of the United States is doing with the FISA Amendments Act as any post any left blogger has written.
First, the court's holding, as described by EFF:
The good news is that the Court held that "FISA preempts the state secrets privilege in connection with electronic surveillance for intelligence purposes and would appear to displace the state secrets privilege for purposes of plaintiffs’ claims." The Court rejected the expansive view of executive power promoted by the government, holding that the President's authorities under Article II of the Constitution do not give him the power to overrule FISA.
The bad news is that "FISA nonetheless does not appear to provide plaintiffs a viable remedy unless they can show that they are 'aggrieved persons' within the meaning of FISA." The Court ultimately found that Al Haramain had not provided a sufficient showing that they were "aggrieved," but gave permission to re-file the complaint with more information.
The state secrets privilege is the Catch-22 of these cases--how can an aggrieved person prove that they are aggrieved if the necessary documents are unavailable because they are classified? On the other hand, how can the telcos defend themselves if the information they require to exonerate them is also classified? This decision, in part, addresses that.
How does this effect FISA in the short term? EFF argues:
[S]o long as the telecom plaintiffs have unclassified evidence tending to establish that they were surveilled--which exists, for example, in Hepting v. AT&T, via AT&T documents provided by whistleblower Mark Klein--FISA's procedures kick into effect and the Bush Administration cannot unilaterally get rid of the telecom cases pursuant to the state secret privilege.
Moreover, this ruling would allow the telecoms to present their defenses. A major talking point for telecom apologists is that the the telcos were unfairly prevented from mounting a defense by the state secret privilege. By holding that FISA's existing evidence security procedures preempt the state secrets privilege, the decision belies telecom immunity proponents' claims that the litigation was unfair because the privilege prevented the telecoms from defending themselves. It also refutes claims that the lawsuits against the telecoms weren't going to go anywhere anyway.
At the very least, this ruling should compel our Senate to take the step of passing the Bingaman amendment to the FAA to push this mess of into the next Congress under a different president.
But, almost more importantly, this opinion should shame a Democratic Congress which has been absolutely negligent in its duty of oversight over the executive.
Walker has a masterful discussion of the legislative history of FISA, settling the question once and for all that the intent of the Church Commission, the intent of the SSCI in developing this legislation, and the intent of the Congress which passed it was to establish FISA as the exclusive means of lawful surveillance, as well as the separation of powers and limits of executive power in domestic surveillance.
Of special relevance to the court’s present inquiry, Congress included in the FISA bill a declaration that the FISA regime, together with the Omnibus Crime Control and Safe Streets Act of 1968 codified at chapter 119 of Title 18 of the United States Code, 18 USC §§ 2510-22 ("Title III"), were to be the "exclusive means" by which domestic electronic surveillance for national security purposes could be conducted:
procedures in this chapter or chapter 121 and the Foreign Intelligence Surveillance Act of 1978 shall be the exclusive means by which electronic surveillance, as defined in section 101 of such Act, and the interception of domestic wire, oral, and electronic communications may be conducted.
18 USC § 2511(2)(f). 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.
The Report of the Senate Select Committee on Intelligence stated that the FISA bill’s "exclusive means" statement "puts to rest the notion that Congress recognizes an inherent Presidential power to conduct such surveillances in the United States outside of the procedures contained in chapters 119 and 120."
The argument put forth by Democrats--particularly Diane Feinstein and Nancy Pelosi--who are supporting this bill that it is so important because of its exclusivity provisions are only blowing so much smoke. That part of the bill is meaningless, and any slim good it might do is completely superseded by the expansion of executive power it allows.
Frank Church took care of exclusivity 30 years ago, and for good reason. Church and his Congress, unlike this Congress, understood the danger of an unchecked executive and to reestablish the checks and balances supposed to be inherent in the Constitution. Judge Walker:
In the case of FISA, Congress attempted not only to put a stop to warrantless wiretapping by the executive branch but also to establish checks and balances involving other branches of government in anticipation of efforts by future administrations to undertake warrantless surveillance in some other manner:
In the past several years, abuses of domestic national security surveillances have been disclosed. This evidence alone should demonstrate the inappropriateness of relying solely on executive branch discretion to safeguard civil liberties. This committee is well aware of the substantial safeguards respecting foreign intelligence electronic surveillance currently embodied in classified Attorney General procedures, but this committee is also aware that over the past thirty years there have been significant changes in internal executive branch procedures, and there is ample precedent for later administrations or even the same administration loosening previous standards.
H R Rep No 95-1283(I) at 21. Given the possibility that the executive branch might again engage in warrantless surveillance and then assert national security secrecy in order to mask its conduct, Congress intended for the executive branch to relinquish its near- total control over whether the fact of unlawful surveillance could be protected as a secret. [emphasis mine]
Finally,
The impetus for the enactment of FISA was Congressional concern about warrantless wiretapping of United States citizens conducted under a justification of inherent presidential authority under Article II. Congress squarely challenged and explicitly sought to prohibit warrantless wiretapping by the executive branch by means of FISA, as FISA’s legislative history amply documented.
In contrast, the impetus for the enactment of the FISA Amendments Act by this Congress appears to be to enable the Bush administration's efforts to hide its unlawful surveillance by granting amnesty to the telecommunication companies and thus foreclosing perhaps the only avenue open to us to finding out what has been done by this administration in our name--the existing civil cases against the telcos.
The supporters of this bill endorse that unlawful surveillance and its cover up. The supporters of this bill endorse the codification of that illegal activity, the expansion of those executive powers rejected by a more forceful and principled Congress of thirty years ago. They would do well to remember that no man is bigger than our Constitution. No political party. No political issue. No election.