In the last-ditch warrantless wiretapping accountability case, Judge Vaughn Walker has ruled that the Bush administration illegally eavesdropped on American lawyers representing Al Haramain, a now-defunct Islamic charity, and that the attorney could pursue civil remedies.
The lawyers alleged some of their 2004 telephone conversations to Saudi Arabia were siphoned to the National Security Agency without warrants. The allegations were initially based on a classified document the government accidentally mailed to the former Al-Haramain Islamic Foundation lawyers. The document was later declared a state secret and removed from the long-running lawsuit weighing whether a sitting U.S. president may create a spying program to eavesdrop on Americans’ electronic communications without warrants
"Plaintiffs must, and have, put forward enough evidence to establish a prima facie case that they were subjected to warrantless electronic surveillance," U.S. District Judge Vaughn Walker ruled, in a landmark decision. Even without the classified document, the judge said he believed the lawyers "were subjected to unlawful electronic surveillance." (.pdf)
It’s the first ruling addressing how Bush’s once-secret spy program was carried out against American citizens. Other cases considered the program’s overall constitutionality, absent any evidence of actual illegal eavesdropping.
The Obama administration’s Justice Department staunchly defended the lawsuit. The classified document was removed from the case at the behest of both the Bush and Obama administrations that declared it a state secret.
Marcy is reviewing the decision at emptywheel, and highlights this snippet of the ruling, which perhaps reflects Walker's impatience with the government over the long history of this case.
Walker gets a little snippy when explaining why the government’s arguments about why they shouldn’t have to prove they didn’t wiretap al-Haramain illegally.
Under defendants’ theory, executive branch officials may treat FISA as optional and freely employ the SSP to evade FISA, a statute enacted specifically to rein in and create a judicial check for executive-branch abuses of surveillance authority.
[snip]
In an impressive display of argumentative acrobatics, defendants contend, in essence, that the court’s orders of June 3 and June 5, 2009 setting the rules for these cross-motions make FISA inapplicable and that "the Ninth Circuit’s rulings on the privilege assertion therefore control the summary judgment motions now before the Court." Doc #672/105 at 6. In other words, defendants contend, this is not a FISA case and defendants are therefore free to hide behind the SSP all facts that could help plaintiffs’ case. In so contending, defendants take a flying leap and miss by a wide margin.
And that’s without even looking at Bush’s claim that Congress can’t tell the President he can’t wiretap Americans.
As of yet, the Justice Department hasn't responded, but an appeal seems likely.
