A federal district judge in San Francisco has delivered another strong rebuke of the Bush administration’s secret wiretap program. The executive branch, he ruled Wednesday, wasn’t immune to the rules on domestic spying established by the 1978 Foreign Intelligence Surveillance Act (FISA).
FISA is "a statue enacted specifically to rein in and create a judicial check for executive-branch abuses of surveillance authority," wrote Chief Judge Vaughn Walker in his ruling.
Privacy advocates have long decried the initiative, and in 2006, the American Civil Liberties Union argued in federal court that the National Security Agency (NSA) was unconstitutionally spying on Americans. A district judge agreed, but the ruling was eventually overturned.
It is often difficult for the alleged subjects of surveillance to seek legal action against the government because of the challenge of proving they were targets of wiretapping.
Now, however, Judge Walker has declared in a summary judgment that an Oregon-based Islamic charity, the Al-Haramain Islamic Foundation, was the subject of “unlawful surveillance.” Furthermore, he said, the current administration, which has tried to block the case without addressing its legal questions, cannot evoke the "state-secrets privilege" to get around FISA requirements about court warrants.
“The government’s overreaching secrecy claims backfired against it,” says Kevin Bankston, senior staff attorney at the Electronic Frontier Foundation (EFF), which assisted the plaintiffs in their case against the federal government.
While the government never admitted or denied spying on Al-Haramain in its arguments or evidence in the case, Walker said that the plaintiffs presented enough declassified information, including public statements by a federal agent, to show that the now-defunct group was indeed the subject of NSA eavesdropping.
The ruling paves the way for the plaintiffs to seek civil damages from the government or press ahead with other legal claims. For example, Walker's ruling didn't address whether the surveillance program violated the plaintiffs' Fourth Amendment right against unreasonable searches.
The US Justice Department has not said whether it will appeal the decision.
Under President Bush, the Justice Department argued that the warrantless wiretapping program was legal. The president, it said, has the right to bypass FISA, especially when the matter is urgent, and it can authorize surveillance in the name of national security. The Justice Department under President Obama has been similarly supportive of the program, which has tracked suspicious international communications such as phone calls, e-mails, and text messages.
Civil libertarians, on the other hand, have long said that Americans' privacy is being violated by the program.
The secret spying program was revealed by The New York Times in a 2005 article that set off an intense debate over the limits of executive power and the lengths the government should go in post-9/11 efforts against Al Qaeda.
In 2008, Congress approved new FISA language that eased restrictions on domestic eavesdropping. It also provided legal protections for telecommunications companies that assist in the government’s surveillance operations.
“We believe the basic structure of the program is still going on, and that’s why we continue to press our case against the NSA and AT&T,” Mr. Bankston says.
The EFF is challenging the protections that Congress afforded telecoms participating in government surveillance operations. It's also pursuing a suit against the NSA to stop what it calls the "illegal, unconstitutional, and ongoing dragnet surveillance" of "millions of ordinary Americans."