Legal Commentary

Federal Judge Rules Bush's Warrantless NSA Wiretapping Illegal

By Jeralyn

A federal judge in San Francisco ruled today in an 45 page opinion (available here) that former President Bush's warrantless NSA wiretapping program was illegal.

The case involved the Al-Haramain Islamic Foundation, an Islamic charity, and two of its lawyers, Wendell Belew and Asim Ghafoor, who alleged their conversations were illegally intercepted. The Court granted their motion for summary judgment finding the Government is liable for damages for illegally wiretapping their conversations without a FISA warrant. [More...]

As the Times reports:

The judge characterized that expansive use of the so-called state-secrets privilege as amounting to “unfettered executive-branch discretion” that had “obvious potential for governmental abuse and overreaching.”

That view, he also said, would enable government officials to flout the warrant law — even though Congress had enacted it “specifically to rein in and create a judicial check for executive-branch abuses of surveillance authority.”

The 2008 FISA amendments changed the landscape a little bit.

In 2008, Congress overhauled the Foreign Intelligence Surveillance Act to bring federal statutes into closer alignment with what the Bush administration had been secretly doing. The legislation essentially legalized certain aspects of the warrantless surveillance program.

But the overhauled law still requires the government to obtain a warrant if it is focusing on an individual or entity inside the United States. The surveillance of Al Haramain would still be unlawful today if no court had approved it, current and former Justice Department officials said.

Background is here. Wired has more on today's decision.

Full post as published by TalkLeft on March 31, 2010 (boomark / email).