The Al-Haramain ruling and the current Congress

Another federal court's ruling reveals how false and extreme is the case for warrantless eavesdropping and telecom immunity.

Published July 3, 2008 2:05PM (EDT)

(Updated below - Update II -

Update III - analysis of Obama's new FISA statement -

Update IV - Update V)

A Bush-41-appointed Federal District Judge yesterday became the third judge -- out of three who have ruled on the issue -- to reject the Bush administration's claim that Article II entitles the President to override or ignore the provisions of FISA. Yesterday's decision by Judge Vaughn Walker of the Northern District of California also guts the central claims for telecom immunity and gives the lie to the excuses coming from Congress as to why the new FISA bill is some sort of important "concession." More than anything else, this decision is but the most recent demonstration that, with this new FISA bill, our political establishment is doing what it now habitually does: namely, ensuring that the political and corporate elite who break our laws on purpose are immune from consequences.

Judge Walker's decision (.pdf) was issued in the case of Al-Haramain v. Bush. That lawsuit was brought against the Bush administration by an Oregon-based Muslim charity and two of its American lawyers, alleging that the Government violated FISA -- i.e., broke the law -- by eavesdropping on their telephone conversations without the warrants required by law. The warrantless eavesdropping occurred as part of Bush's NSA spying program, which entailed spying on Americans' international communications without warrants (the lawyers were in London when they spoke on the telephone to their client in Oregon). What makes this case unique is that the lawyers and charity know for certain that they were spied on as part of the secret NSA program because the DOJ accidentally produced transcripts of those calls.

The Bush administration argued that the plaintiffs could not prove their case because, to do so, they would have to rely on documents and information that the President deemed to be "state secrets" (i.e., the Government's eavesdropping activities) and which are, therefore, unusable in court. That is the argument the court rejected -- holding instead that Congress, when it enacted FISA, established a procedure that allows even classified information to be considered by a court, and the President's Article II powers cannot override the FISA statute. As the Court pointed out, Congress' core purpose in enacting FISA in 1978 was to bar the President from exercising untrammeled, unchallenged power in the area of eavesdropping. Thus, presidential assertions of secrecy do not override the law.

There are several vital points to note from this decision that directly relate to Congress' plan next week to enact a new FISA statute, vest new warrantless eavesdropping powers in the President, and immunize lawbreaking telecoms:

(1) As indicated, Judge Walker became the third federal Judge to reject the Bush administration's legal excuse for breaking the law. Now that Judge Walker has joined Federal District Judge Anna Diggs Taylor in the Eastern District of Michigan and Sixth Circuit Court of Appeals Judge Ronald Gilman in so ruling, this means that every federal judge to rule specifically on the Bush administration's legal excuses for violating FISA has rejected those excuses (as even Bush-cheerleader Andy McCarthy admitted, the Supreme Court's 2006 decision in Hamdan also "sounds the death knell for the National Security Agency's Terrorist Surveillance Program (TSP)" by effectively rejecting the President's legal excuses for violating FISA).

Despite that unanimous line of defeats for the administration's lawbreaking excuses -- or, more accurately, because of it -- Congress is about to put an end to any real hope that there will be a meaningful, final adjudication on whether the Government broke the law. Despite yesterday's ruling, the plaintiffs in this case still face significant, possibly insurmountable, procedural hurdles regarding "standing" -- the same procedural hurdles that prevented the ACLU's case in the Sixth Circuit from proceeding.

For procedural reasons, the court yesterday ruled that plaintiffs -- in order to obtain a ruling as to whether the Bush administration broke the law -- must be able to show that they were subject to warrantless surveillance without using the accidentally produced transcripts, something that will be very difficult to do. Congress has refused to pass legislation to fix this Kafkaesque, Catch-22 trap -- whereby the President illegally spies in total secrecy, with no oversight, thus preventing anyone from being able to prove they were subjected to the illegal spying and thus preventing anyone from having "standing" to challenge the legality of the spying in court.

Thus, we have extremely strong indications from multiple courts that the President deliberately broke the law for years -- a law that provides that violations of its provisions are felonies punishable with 5 years in prison for each offense. And yet our political establishment, with Democrats at the helm, are about to ensure that there are never any consequences for that lawbreaking and no accountability whatsoever in a court of law.

A typical line in Barack Obama's stump speech throughout the primary season was that "the era of Scooter Libby justice . . . will finally be over." But this new FISA bill -- and the immunity it bequeaths -- is the very essence of "Lewis Libby justice": ensuring that our highest political officials and other well-connected elites can break our laws with total impunity. Courts keep ruling that the President and his allies have no excuses for having broken our laws, while our political establishment acts to ensure that they are protected from the consequences.

(2) Judge Walker is the same Judge who is presiding over all of the telecom lawsuits. He has ruled against telecoms in the past, most notably refusing to dismiss the lawsuits on this ground: "because the very action in question has previously been held unlawful, [telecoms] cannot seriously contend that a reasonable entity in its position could have believed that the alleged domestic dragnet was legal" [Decision at 68; emphasis added].

This history of the telecoms -- faring no better in court than the President has -- gives the lie to Fred Hiatt's deeply (and typically) dishonest Washington Post Editorial today -- by way of praising Obama's FISA stance -- that telecom immunity is a good idea because "The likelihood of prevailing -- or even getting very far -- with such lawsuits is low." The exact opposite is true: it's precisely because the telecoms know they are in severe danger of losing in court -- because they broke multiple laws -- that they and the White House are so desperate for amnesty.

The excuses offered by our political establishment for this rampant lawbreaking have been systematically rejected by the institution the Founders intended to adjudicate these legal issues -- our courts -- and it's for exactly that reason that our establishment is now conspiring to take away from the courts the responsibility they were assigned to hold lawbreakers accountable.

(3) The central excuse from leading Democratic advocates of telecom immunity -- that the poor telecoms are unfairly hamstrung in these lawsuits by the President's assertion of the "State Secrets" privilege from using the evidence that shows they're innocent -- was gutted by yesterday's ruling. That excuse was false all along, since FISA explicitly provides that any party can submit even classified evidence to the court. As I noted back in January in response to Jay Rockefeller's misleading claim that immunity was necessary to save the telecoms from the unfair predicament of being barred by the President from submitting exculpatory evidence in these lawsuits:

Rockefeller added: "If people want to be mad, don't be mad at the telecommunications companies, who are restrained from saying anything at all under the State Secrets Act. And they really are. They can't say whether they were involved, they can't go to court, they can't do anything. They're just helpless. And the president was just having his way."

Rockefeller's claim that telecoms can't submit exculpatory evidence to the court is flat-out false, an absolute lie. There is no other accurate way to describe his statement.

Under FISA (50 USC 1806(f)), telecoms are explicitly permitted to present any evidence in support of their defenses in secret (in camera, ex parte) to the judge and let the judge decide the case based on it. That section of long-standing law could not be clearer, and leaves no doubt that Rockefeller is simply lying when he says that telecoms are unable to submit secret evidence to the court to defend themselves.

That's exactly what Judge Walker ruled yesterday:

[Decision at 18]. The excuse that telecoms were prevented from submitting their evidence to the court to prove they complied with the law was always a sham. FISA explicitly provided a procedure for doing exactly that. And now Judge Walker's ruling makes that fact crystal clear.

(4) This ruling also reveals what a ruse is the Democratic leadership's primary defense of their new FISA bill -- that because they stood firm and negotiated a clause providing that FISA is the "exclusive means" for eavesdropping, we should all be grateful for this new law. That claim was painfully insulting from the start, since the current FISA law -- the one that Bush and the telecoms have continuously broken with no consequences -- already provides exactly that, and Judge Walker ruled yesterday that this provision is more than sufficient to prohibit the President from acting outside of its scope:

[Decision at 23, 25]. The next time you hear Steny Hoyer, Obama surrogates and their various apologists tell you how important the new FISA bill is because it contains an "exclusivity" provision and thus ensures that the FISA court is brought back into Government eavesdropping, just go read what Judge Walker said about the current FISA framework to realize how misleading that claim is. They're presenting as a "gift" something you already have, and telling you that you should give up critical protections in exchange for receiving something that you already have -- namely, a requirement that the President comply with eavesdropping laws. What they're doing is tantamount to someone who steals your wallet, takes all the money out, gives the empty wallet back to you, and then tells you that you should be grateful to them because you have your wallet.

(5) Here is the most important point of all. The Court reviewed the basic history of FISA: that the Church Committee in the mid-1970s had uncovered decades of spying abuses by our Government that were made possible -- made inevitable -- because the Government could spy without warrant requirements. The Court quoted the Church Committee's findings:

[Decision at 10-11]. That was the process that led to the enactment of FISA 30 years ago. That is the bipartisan consensus that led both Republican and Democratic Presidents ever since to comply with it without complaint -- until the current President broke the law in secret. And now, that's the framework which the Congress is about to demolish, while protecting the very political officials and telecommunications companies which that law was designed to constrain.

The very people who are doing this and justifying it are the same ones who spent the last seven years either meekly submitting to or actively enabling the whole radical litany of Bush war-making and law-breaking. Despite that, these people -- the same ones who cheered on the most unpopular President in modern American history and one of the most disastrous, hated wars and the whole range of radical, un-American measures of the last seven years -- are insisting that they are the mainstream "centrists," and that that those who merely favor the preservation of this long-standing FISA framework to protect our core constitutional liberties are the "radicals" -- Far Leftist radicals who believe in such extremist and discredited doctrines as the Fourth Amendment, judicial warrants, and the rule of law. Those are the rotted premises that have produced the political climate of the last seven years and which have led us to the Senate vote next week.

UPDATE: Regarding the distorted claims about the "center," see this superb post from conservative Daniel Larison and this one from Far Leftist extremist-radical Duncan Black.

UPDATE II: Also on the topic of the misleading, distorted way the "center" is defined in conventional political circles -- as in: "Obama is moving to 'the Center' by supporting a bill with warrantless eavesdropping and telecom immunity" and the like -- please read this in full (though the media drama today about Obama's "change" in his Iraq position is not just overblown but outright inaccurate).

UPDATE III: Barack Obama issued a new statement today justifying his support for the new FISA bill. My point-by-point analysis of it is here.

UPDATE IV: McClatchy's military affairs columnist, Joe Galloway, has the perfect July 4 column, condemning what he calls "a gutting of the Fourth Amendment to the Constitution" that is "yet another stain on the gutless and seemingly powerless Democratic majority in both houses of Congress." He adds: "That a majority on both sides of the aisle -- not least of them the presumptive nominees for president of both political parties -- intend to vote for such a violation of Americans' right to privacy and of the sanctity of their personal communications is a stunning surrender to those who want us to live in fear forever."

UPDATE V: As part of an Editorial criticizing what it calls the "New and Not Improved" Barack Obama, the New York Times -- while correctly noting that "[t]here are still vital differences between Mr. Obama and Senator John McCain on issues like the war in Iraq, taxes, health care and Supreme Court nominations" -- observes today:

Now there seems to be a new Barack Obama on the hustings. . . . The new Barack Obama has abandoned his vow to filibuster an electronic wiretapping bill if it includes an immunity clause for telecommunications companies that amounts to a sanctioned cover-up of Mr. Bush’s unlawful eavesdropping after 9/11.

In January, when he was battling for Super Tuesday votes, Mr. Obama said that the 1978 law requiring warrants for wiretapping, and the special court it created, worked. "We can trace, track down and take out terrorists while ensuring that our actions are subject to vigorous oversight and do not undermine the very laws and freedom that we are fighting to defend," he declared.

Now, he supports the immunity clause [that's not really a fair characterization] as part of what he calls a compromise but actually is a classic, cynical Washington deal that erodes the power of the special court, virtually eliminates "vigorous oversight" and allows more warrantless eavesdropping than ever.

Leave aside the substantive reasons why Obama's position is so wrong (as some of his defenders are so eager to do, such as the author of today's leading Obama-defending diary at Daily Kos who spouts the consummate mentality of the standard Bush follower by proclaiming that he doesn't care about warrantless government spying because it's only used against other people (The Bad People presumably) and thus "WILL NOT affect my life AT ALL." That exact justification applies to, and has been used to justify, torture and attacks on other countries, too). Substance aside, it's impossible to understand why the Obama campaign thinks it's good politics to change core positions so flagrantly and rapidly, thus engendering damaging (though accurate) Editorials of this kind from the otherwise very sympathetic NYT Editorial Page.

By Glenn Greenwald

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