Privacy

We Can't Tell You Whether We Broke the Law, Because That's a Secret

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Yesterday a federal judge in San Francisco ruled that the Al Haramain Islamic Foundation can recover damages under the Foreign Intelligence Surveillance Act (FISA) for illegal eavesdropping on telephone conversations between its officials and its American lawyers. U.S. District Judge Vaughan Walker rejected the Obama administration's argument that the state secrets privilege barred the foundation's lawsuit. Although Barack Obama ran on a promise to use the privilege less promiscuously than his predecessor, his Justice Department, like Bush's, claimed that even acknowledging the warrantless wiretapping of Al Haramain would endanger national security.

Al Haramain learned about the surveillance after the government accidentally gave its lawyers a classified document discussing it, but the foundation was not allowed to cite that document in making its case. Instead it relied on public statements by various federal officials that Walker concluded were sufficient to show the surveillance had occurred. Since there was never any serious question that warrantless surveillance of communications involving people in the United States violated FISA, the government lost its case once Walker refused to let it hide behind the state secrets privilege. "Under defendants' theory," he noted, "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….Because FISA displaces the SSP in cases within its purview, the existence of a FISA warrant is a fact that cannot be concealed through the device of the SSP."

While running for president, Obama criticized the Bush administration for treating FISA as optional and promised to investigate terrorism without breaking the law. At the same time, he voted to amend FISA in ways that legalized most of the warrantless surveillance that Bush had unilaterally approved. But according to The New York Times (citing "current and former Justice Department officials"), "The surveillance of Al Haramain would still be unlawful today if no court had approved it," because the amended statute "still requires the government to obtain a warrant if it is focusing on an American citizen or an organization inside the United States."  

Walker's decision is here (PDF).

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  1. recover damages

    What a concept!

  2. Thanks, now i’ve got the Who stuck in my head, again.

  3. “Under defendants’ theory,” he noted, “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….Because FISA displaces the SSP in cases within its purview, the existence of a FISA warrant is a fact that cannot be concealed through the device of the SSP.”

    Shorter:

    “Under defendants’ theory,”
    they can do any fucking thing they please, because they are above the law.

  4. Once again, the only thing that makes this shit bearable is the knowledge that the fools and tools who voted for this fuck are getting shafted royally, and that it’s so brutal and obvious that they don’t even have the balls to try and defend it. At least if I’m going to get fucked, so should the morons who actually thought Barry would be different. Harder.

    1. You’re assuming that they actually care about civil liberties, and weren’t just looking for an excuse to bitch about the president because he belonged to the wrong team.

  5. Score one for common decency.

    It seemed to me when warrentless wiretaps first came out, that the only reason the Bush Administration didn’t do what they were supposed to in the first place was straight up incompetence.

    They just did whatever they wanted and when it came out that they were just doing whatever they wanted, they tried to invent some legal framework to justify it after the fact…

    …and their cultists, of course, supported whatever the Bush Administration was doing just because they were the ones that were doing it and because the people they were doing it against were suspected terrorists.

    But it always seemed to be the case that they could have gotten a FISA warrant if they’d wanted to; they just didn’t bother.

    And no ticking time bomb scenario can change the fact that the government seems to have jeopardized what may have been important foreign intelligence operations with its incompetence!

    If some future terrorist operation is successful because the authorities couldn’t act on information the Obama or Bush Administrations were too incompetent to get the proper rubber stamp for, then that won’t be the fault of civil libertarians or any judge.

    It will be because of the incompetence of the Bush and Obama Administrations. …not that the truth will matter to many of us then.

    1. I don’t think it’s incompetence, it’s indifference. They knew what they were doing and had reasons for doing it. They just didn’t care if it violated the law because they way they viewed executive power.

      The seperation of powers argument was bullshit, unless you accept the premise that POTUS is above the law or lawless, being that law is created by Congress.

      Incompetence is too nice. They were assholes that thought the law didn’t apply to them.

      1. My understanding is that they had to release people who were later recaptured on the battlefield!

        …and they had to release them because of the Bush Administration’s unprecedented bonehead maneuvers!

        (Denying people trials, etc.)

        If that’s true, if they really did have to release people who were eventually recaptured because the Bush Administration was too stupid to treat them like POWs even if they weren’t, then what else is there to call that but “incompetence”?

        We might be at war with Al Qaeda for another 20 years–that’s the great thing about POWs. You don’t even have to try them for anything! And you get to hold them until hostilities cease! …which may not happen for another 30 years!

        And for what?! What was the advantage of not treating them like POWs?! That you got to waterboard 12 of them?!

        Little up-side; huge down-side! That’s the definition of incompetence.

  6. The king can do no wrong.
    The constitution is not a suicide pact.
    State secrets privilege.

    What would be do without them?

  7. FISA itself is a brazen assault upon the constitution.

  8. Too bad Welch already used up Hit’n’Run’s allotment of Kafka references for the day.

    1. I don’t see why it should be capped at one.

    2. As Nick Gillespie awoke one morning from uneasy dreams he found himself transformed in his bed into a mannequin for a leather jacket.

  9. I don’t see why it should be capped at one.

    Cutbacks, yo. These are hard times.

  10. I was just sitting here humming “I always feel like, Obama’s watching me…”
    Now I can’t get it out of my head.

  11. But it always seemed to be the case that they could have gotten a FISA warrant if they’d wanted to; they just didn’t bother.

    Really- the historical success rate of FISA warrant applications is about 99%, if what I have read is correct.

    1. Really- the historical success rate of FISA warrant applications is about 99%, if what I have read is correct.

      That’s been my understanding as well.

      I have to believe that the reason they wouldn’t obtain a FISA warrant (which are supposedly some of the easiest to get) is because even with such a low bar to obtain a warrant, they wouldn’t be able to.

      They really are just fishing.

    2. In some ways, at least in this case, it seems like they were trying to go after things they couldn’t go after before.

      I’d always heard the historical success rate for FISA warrants was around 99% too, but in this case, especially, I wonder, ’cause I don’t know…?

      How often do judges approve FISA warrants obtained to listen in on someone talking to their lawyer?

      I would think that a judge approving a tap of a conversation between potential defendants and their lawyers would likely be among that 1% that might not be approved.

      1. “”How often do judges approve FISA warrants obtained to listen in on someone talking to their lawyer?

        I would think that a judge approving a tap of a conversation between potential defendants and their lawyers would likely be among that 1% that might not be approved.””

        Any legal tap could catch a conversation between you and your lawyer. I seriously doubt the protocol says you must mask out any conversation with counsel at the time of recording. It boils down to what will they do with that information. The can’t use it in court. But could they use it in other intelligence gathering and dissemination purposes? Probably.

        1. This wire tap would have been specifically for that purpose though.

          The 1% that get shot down have to be for something, and I don’t think they let the FBI bug the Mob’s lawyers!

          I don’t think we’re talking about overhearing some random conversation that just happened to go to their lawyers; I think we’re talking about them listening in on the conversations between them and their American lawyers specifically.

  12. But Bush did it too!

  13. Obama’s a Democrat, so it’s okay for him to do this.

  14. Obama’s a Democrat, so it’s okay for him to do this.

    Obama was democratically elected by a majority of the American voting public, and therefore any action he takes is necessarily the will of The People(tm) — and, thus, necessarily good, just, right, etc. That is the Chony response.

  15. the real question is: when will felony charges be brought against the relevant officials in the Bush and Obama administrations? It is high time we started putting the political class in prison.

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