NSA's domestic spying was illegal, federal judge rules

A federal judge today ruled that the NSA's warrantless wiretapping program was illegal. In doing so, the judge rejects the Obama administration's attempts to maintain the secrecy around the widely criticized program introduced by Bush after the 9/11 attacks:
In a 45-page opinion, Judge Vaughn R. Walker ruled that the government had violated a 1978 federal statute requiring court approval for domestic surveillance when it intercepted phone calls of Al Haramain, a now-defunct Islamic charity in Oregon, and of two lawyers who were representing it in 2004. Declaring that the plaintiffs had been "subjected to unlawful surveillance," the judge said that the government was liable to pay them damages. The ruling delivered a blow to the Bush administration's claims that its warrantless surveillance program, which Mr. Bush secretly authorized shortly after the terrorist attacks of Sept. 11, 2001, was lawful. Under the program, the National Security Agency monitored Americans' e-mail messages and phone calls without court approval, even though the Foreign Intelligence Surveillance Act, or FISA, required warrants.
Federal Judge Finds N.S.A. Wiretapping Program Illegal (NYT)


    1. I’m sure they are tapped, and that’s why he likes it now. Why do you think all the politicians who could actually change it pull a 180 whenever it’s up for a vote?

  1. Holy fricken’ shit!!!! This is incredible if this actually doesn’t get struck down somehow.

  2. As I understand it, this program started even before 9/11.

    According to a lawsuit filed against other telecommunications companies for violating customer privacy, AT&T began preparing facilities for the NSA to monitor “phone call information and Internet traffic” seven months before 9/11.


    1. Obama’s inaction on this is indeed one strike against him.

      Of course that’s as opposed to the previous administration repeatedly trashing due process, so at worst Obama is still a huge improvement.

      1. Obama’s inaction on this is indeed one strike against him.

        If only were so lucky to just have inaction from Obama on this. As others have noted, even before becoming President he voted for a bill that included telecom immunity for these illegal actions, as well as gutting the very FISA provisions that made this very wiretapping illegal. Then his Justice dept continued to recycle Bush-era secrecy claims in an attempt to prevent this very case from going forward.

        Better than the other guy, no doubt, but Obama’s only passing because we’re grading on a curve.

      2. Due process (when in a federal government context) is a Fifth Amendment issue. Illegal searches (like these wiretaps) are a Fourth Amendment issue. This has absolutely nothing to do with due process.

    2. The ends justify the means. If Obama started with the civil liberties problem, he would waste credit and do nothing about jobs or health care (or the wars). Tackling the biggest problems first allows the Dems to survive in office – despite a strange willingness to do Good at high political risk – long enough that civil liberties might, indeed, become the biggest problem. We can only hope!

    3. Phikus, I have to agree with you. I was so disappointed when I heard he wasn’t going to press charges against these companies.

  3. “Obama’s inaction on this is indeed one strike against him.”

    To be honest, I sort of viewed Obama’s attempts at supporting this policy as half assed anyway. Like he wasn’t really trying, ya know?

  4. Declaring that the plaintiffs had been “subjected to unlawful surveillance,” the judge said that the government was liable to pay them damages.

    Sooo, should every citizen in the country now be waiting for a check in their mailbox?

    1. Only once we win the class action lawsuit. Know anyone who has circumstantial evidence that they’ve been spied on?

  5. This is great news. Defenders of civil liberties have won a huge victory over defenders of the police state.

    But for those who are criticizing the Obama administration for making the same legal arguments that the Bush administration made in these sorts of cases, have you stopped to consider the possibility that Obama and his legal advisors might be a lot more clever than you’re giving them credit for being? (Remember, Obama was a constitutional law scholar before he became a politician.) We just got a formal legal ruling by a federal court that the domestic surveillance policies of the Bush administration were illegal, and the the legal arguments the Bush administration had been using to justify those policies were flawed. I suspect that the Obama administration was secretly hoping for, and counting on, getting that very ruling. The only way to completely discredit the policies and legal rationale used by the Bush administration would be to have a federal court issue an official ruling against them. Without that ruling, defenders of the Bush administration’s policies could always argue that they were proper and constitutional. Future administrations might even feel justified in returning to those policies. But now we have a definitive court ruling that makes it absolutely clear that no future president can rightfully claim the legal authority to do what Bush did. (I suspect that the Obama administration is following the same basic strategy on other controversial issues, such as the Defense of Marriage Act, where the administration seems to be taking the wrong side in court.)

    Maybe I’m giving Obama too much credit on this; but I think he’s got some clever legal and political strategists working for him; and I have to believe that they know that the only way to drive a stake through the heart of the Bush administration’s legal arguments once and for all is to have the courts rule on them.

    1. Ah, the 11-dimensional chess argument. But before the election, Obama promised to filibuster retroactive immunity– then changed his mind completely and voted for it. And how do you explain his reversals on torture, indefinite detention, secret prisons, state secrets arguments, signing statements… ah, he’s probably doing all that to get to Bush, of course!

      1. @straponego: I don’t explain his “reversals” on torture, secret prisons, or signing statements, since he hasn’t actually reversed his position on any of those things:


        And my previous comment explained his position on the state secrets argument — he had to continue to use the Bush administration’s line of reasoning in court in order to have the court strike it down.

        As for indefinite detention, I can only say that the situation is not ideal; but Obama is having to play the hand he was dealt — and it’s a really bad hand. The actions of the previous administration basically left Obama with two evils to choose from: indefinitely detain a few known terrorists without due process, or release release them where they’ll be free to commit future acts of terrorism. Obama has the unenviable task of trying to figure out which of those two options is the lesser evil. Of course, given the fact that no other country is willing to take any of these detainees, he doesn’t really seem to have much of a choice in the matter.

        1. The actions of the previous administration basically left Obama with two evils to choose from: indefinitely detain a few known terrorists without due process, or release release them where they’ll be free to commit future acts of terrorism.

          Or provide them with due process? I know, it’s been made very difficult, but it would be nice if he at least made an attempt to find out how it could be done, before toying with ideas like making indefinite detention legal in the US proper.

    2. Ha ha ha! The old “the president is doing good even when he is doing evil” argument! Stop and consider that maybe G.W. Bush enacted these policies in the first place so that Obama could later pretend to support them in order to allow a federal court to find them illegal so that no president could ever use them again. Those clever bastards!

  6. This is a great example of why separation of powers is so important. Judges can often make the right call on issues that elected officials would find to be political suicide.

  7. Something that everyone seems to have missed so far: this is the same judge presiding over the Prop 8 trial. What that means exactly, I’ll leave up to you to consider.

  8. Obama voted for telcom immunity.

    Is that another strike? Still like that bumper sticker.

    It’s only one of many Bush-like policies of Obama.

    The use of the state secrets privilege is another.

    There are others.

  9. It is shameful that Mr. Obama has been part of the problem and not the solution on this.

    Agreeing with that.

    Also – what is so hard about getting a FISA warrant? Do we need to hire more judges to cut the time it takes to get one? Do we need squads of legal interns on call, sitting around playing FreeCell until the Bat Signal goes up and they swing into action?

  10. The wars?

    Obama has done nothing wrt Iraq. Nothing. He’s just riding the same policy that was in place before he got into office, which is to chill out on bases until 12/31/2011 as per the SOFA.

    And he escalated in Afghanistan and Pakistan. The uh “right” war.

    And that’s how you get a Nobel Peace Prize.

  11. “Well Jim, I guess, for the moment, we can put up the Balloon Blogger Signal.”

    Somewhere, maybe on a highrise rooftop, with his balloon tethered to a gothic statue, Cory Doctorow has taken a pause to do a jig.

  12. Best news I heave read i a long while.

    The idea that this was some sorta ruse sounds like rationalization from worshipers of the Obama-God.

    I voted for the asshole because I was promised change. He’s just a more eloquently speaking and charming authoritarian. Meet the new boss… SAME AS THE OLD BOSS.

  13. Well, Mr Bush did make some controversial appointments to the supreme Court….which will IIRC have the final say on this.

    Early innings…

  14. Obama never gets his hands dirty so Eric Holder is the one to watch. He’s already tried to block the case being sent to court initially. Eric’s job is to protect the elite. He has not brought a single prosecution forward to date against any illegal activity from the Bush team. Recall also, under Clinton he was the one who organised the last-minute clemency for the criminal Marc Rich.

  15. NYT did get it wrong… the program started back in 2000, didn’t it? Here’s a thought: If everyone and everything was being tapped, don’t you think there would have been enough chatter picked up to know 9/11 was going to happen?

    Maybe they aren’t listening to everyone after all. Now, the lawyers and the charity involved in this case: Were they calling overseas? As I understand it, a FISA warrant should have been obtained retroactively if any party is a U.S. citizen… no argument there, that’s the basis for the lawsuit. Still, if they were calling suspect foreign nationals they pretty much put themselves in the surveillance spotlight.

    You calling your friend? Not so much, Anon #9.

  16. I’m of the opinion that Joe Nacchio was set up for insider trading because he was the only one in RBOC land one that said to cooperating.

  17. When you start to get down about the justice system, it’s always good to see a judge go ‘you know what… fuck this, fuck you guys, this is wrong’ for a change.

  18. Better than the other guy, no doubt, but Obama’s only passing because we’re grading on a curve.

    Well said!

  19. heh…one more time…

    he had to keep supporting it because he was against it.

    double think, anyone?

  20. I suggest that before forming an opinion about the import of the decision, it is important to understand what the judge decided. He decided that the “state secrets” argument was not sufficient to find for the government. See the analysis provided by Professor Orin Kerr. http://volokh.com/2010/04/01/what-al-haramain-says-and-what-it-doesnt-say/

    “The Obama Administration wasn’t arguing that the surveillance program was lawful. As a result, the decision doesn’t rule that the program was unlawful. Rather, the Obama Administration was just arguing that Judge Walker couldn’t reach the merits of the case because of the state secrets privilege. After Judge Walker rejected the state secrets privilege claim, the case was over: DOJ not having argued that warrantless monitoring was lawful, Walker had no choice but to grant relief to the plaintiffs on their claim.”

  21. anon@37,

    Don’t drink Kerr’s Kool-Aid on this one. Think it through logically… the Obama DOJ didn’t even bother to present arguments for the program’s legality… if it had, the judge presumably would have considered them. If Kerr was on-target here, a legitimate tactic for a pro-warrantless wiretapping administration would be to simply argue the “state secret” privilege every time, because somehow losing when that’s your only argument means you “didn’t really lose”.

    What did the judge find? That the government wronged the plaintiffs. Kerr instead suggests that the government’s failure to argue one aspect of the case means that the judge’s ruling is automatically downgraded to one that only means “the DOJ’s case was flawed.”

    Does that make sense to you? Does the DOJ have the power to hamstring the judge, simply by making a shitty argument?

    Orin Kerr is being disingenuous at best. In my eyes, that’s giving him too much credit considering how his opinion on cases like these has “shifted”.

    Greenwald has more to say on this:

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