Sherry Chandler

FISA: the plot thickens

From the NYTimes, Judge Rejects Bush’s View on Wiretaps

WASHINGTON — A federal judge in California said Wednesday that the wiretapping law established by Congress was the “exclusive” means for the president to eavesdrop on Americans, and he rejected the government’s claim that the president’s constitutional authority as commander in chief trumped that law.

The judge, Vaughn R. Walker, the chief judge for the Northern District of California, made his findings in a ruling on a lawsuit brought by an Oregon charity. The group says it has evidence of an illegal wiretap used against it by the National Security Agency under the secret surveillance program established by President Bush after the terrorist attacks of Sept. 11, 2001.

The Justice Department has tried for more than two years to kill the lawsuit, saying any surveillance of the charity or other entities was a “state secret” and citing the president’s constitutional power as commander in chief to order wiretaps without a warrant from a court under the agency’s program.

But Judge Walker, who was appointed to the bench by former President George Bush, rejected those central claims in his 56-page ruling. He said the rules for surveillance were clearly established by Congress in 1978 under the Foreign Intelligence Surveillance Act, which requires the government to get a warrant from a secret court.

The implication of this ruling, it seems to me, is that Congress should not be falling all over itself to provide legal coverage for the Bush administration’s illegal activities. As the Times article concludes:

The ruling comes as the Senate is overhauling the foreign intelligence law. The measure would reaffirm FISA as the exclusive means for the president to order wiretaps through court warrants, but it would also provide legal immunity to phone companies involved in the eavesdropping program. A vote could come Tuesday.

The immunity issue would not directly affect this lawsuit because Al-Haramain is suing the government, not the phone companies. But the nearly 40 other lawsuits against phone companies that Judge Walker is overseeing would almost certainly have to be dismissed if immunity is signed into law, legal analysts say.

But there is more than just retroactive immunity at stake here. It is bad enough that we have to have a “secret court” but the government should not be allowed to spy on whomever it pleases with no oversight and no accountibility. That is absolute power and absolute power corrupts absolutely.

It isn’t as if all this illegal spying has gained us much. The Bush record on arrests, convictions, is pathetic, al Qaeda is still active, and Osama bin Laden is still at large.

By now you’ve no doubt heard that Obama supporters are making a concerted effort to change the Senator’s stand on this issue. Currently, as The Falcon’s Gyre points out:

Barack Obama has been moving to the right since the middle of June. He’s always advocated Social Security “reform,” and several times he has praised Ronald Reagan and the Republican Party as “the party of ideas,” but now he’s folded on FISA along with most of the so-called Democratic Congress.

That’s right. Barack Obama, right now at least, has no use for the Fourth Amendment. Furthermore, he’s basically promised to use his powers to spy on us without warrants only for good.

The Falcon provides a link where you can join this effort to get Obama to support the filibuster of the bill.

Added: More on this.

Chris Dodd is seeking signatures, too.

Possibly related posts:

FISA revisited

FISA: The ACLU will sue

What’s at stake?

Sometimes there’s hope

All I know is what I read in the papers

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