Chronicle of a journey from youthful
know-it-all to old-fart astonishment.
From the Newsdesk
Judge: FISA trumps state secrets, binds executive branch
By Julian Sanchez Published: July 03, 2008 - 02:48PM CT
The Foreign Intelligence Surveillance Act provides the "exclusive means" for electronic eavesdropping within the US, a federal district court judge in California ruled yesterday, and explicitly supersedes the government's claim that it may invoke the "state secrets" privilege to shield documents from court scrutiny. The plaintiffs in the suit against the government, the Al-Haramain Islamic Foundation, now have 30 days to show—without recourse to secret documents—that they were targets of government wiretaps. But the language of the decision also strongly suggests that if they do, any surveillance that occurred outside the bounds of FISA will be found unlawful, notwithstanding the president's assertion of an "inherent authority" to ignore the law in the name of national security.
The Al-Haramain case has its origins in a government blunder that tore a rare hole in the veil of secrecy surrounding the National Security Agency's surveillance programs: The foundation was accidentally given a classified document, which the government has since reclaimed, showing that its directors' telephone conversations had been intercepted. An appeals court later ruled that, notwithstanding the inadvertent disclosure, that document should remain under seal, and the government has sought to invoke its privilege to protect state secrets in order to have the case dismissed.
But in yesterday's 56-page opinion, Judge Vaughn R. Walker ruled that in Section 1806 of the Foreign Intelligence Surveillance Act, Congress provided specific procedures by which "aggrieved persons" may have sensitive information reviewed in camera by the courts, thereby preempting the common law protection for state secrets pertaining to the type of surveillance covered by FISA. And more broadly, Walker insisted that FISA really does provide the sole, binding process by which the executive branch may conduct foreign intelligence wiretaps.
"Congress appears clearly to have intended to—and did—establish the exclusive means for foreign intelligence surveillance activities to be conducted," wrote Judge Walker in his opinion. "Whatever power the executive may otherwise have had in this regard, FISA limits the power of the executive branch to conduct such activities and it limits the executive branch’s authority to assert the state secrets privilege in response to challenges to the legality of its foreign intelligence surveillance activities."
There remains one last catch-22, however. FISA trumps the state secrets privilege only in cases involving "aggrieved persons." But plaintiffs must prove that they are "aggrieved" without making use of the secret document they had obtained before the law will permit documents, and others concerning surveillance of Al-Haramain, to be used in court. Exactly what standard of proof they must meet, however, is unclear because there is so little case law governing the question.
Jon Eisenberg, the attorney for the Al-Haramain Islamic Foundation, nevertheless notes that the judge "gives us some hints," suggesting that the sort of independent evidence adduced in the high-profile surveillance lawsuits targeting telecom firms might be sufficient. Eisenberg is optimistic that he can meet this hurdle. "I think there's compelling, unclassified circumstantial evidence," he says, "that would lead any reasonable person to believe our clients were surveilled."
Perhaps just as important is the judge's implicit rejection of the idea that the executive branch has the power—perhaps, as some have argued, pursuant to the president's Article II powers as commander in chief—to conduct surveillance outside the bounds of FISA. Though the ruling does not directly consider this question, it does hint at how Walker, who was appointed by George Bush Sr., would be likely to rule on the merits. If FISA provides a real and binding limit on the surveillance power of the executive, after all, then it is hard to avoid the conclusion that the NSA's secret program of warrantless surveillance was indeed illegal. "If we get standing," predicted Eisenberg, "we win."
The ruling does not directly affect the more well-publicized class-action suits against telecoms complicit in the NSA's surveillance, which are currently in limbo before the Ninth Circuit Court of Appeals—presumably pending next week's vote in the Senate on a bill to grant the telecoms retroactive immunity for their actions. But Kurt Opsahl, an attorney with the Electronic Frontier Foundation who is litigating those cases, notes that the ruling "undercuts one of the talking points" that Democratic leaders have advanced as a rationale for endorsing the pending bill.
"A reason given for agreeing to the current form of the FISA bill," says Opsahl, "was that the exclusive means language"—a provision reasserting that foreign intelligence surveillance must occur pursuant to FISA—"was part of the trade-off the Democrats had made." This ruling makes clear, as critics of the FISA amendments compromise have argued all along, that FISA is already the "exclusive means" of lawful surveillance, not a new concession won by Democrats in Congress. And according to Opsahl, "this shows that the litigation can proceed under longstanding secrecy procedures that have worked for many years."
No comments:
Post a Comment