According to a California federal court ruling this afternoon, the Bush administration's warrantless wiretapping program illegally spied on several American citizens in violation of the Foreign Intelligence Surveillance Act (FISA) with a sweeping surveillance program instituted after 9/11.
The Terrorist Surveillance Program was revealed in a Pulitzer Prize winning story in the New York Times in December of 2005. According to the Times story by James Risen and Eric Lichtblau, President George W. Bush authorized the National Security Agency to begin spying on domestic communications within months of the September 11th attacks on the World Trade Center and Pentagon.
The NSA allegedly had "monitored the international telephone calls and international e-mail messages of hundreds, perhaps thousands" with authorized warrants from the Foreign Intelligence Surveillance Court. According to Judge Walker, this surveillance violated the FISA statute which made the FISA court the only appropriate venue for warrants involving matters of national security. FISA was passed in the 1970's in response to illegal spying on Americans by the FBI and other intelligence agencies for political purposes by the Nixon administration.
This ruling would seem to indicate that the FISA court is insufficient or incapable of properly limiting legal domestic spying, given that the Bush administration simply ignored it for the better part of three years and there have been no substantive repercussions on those officials or changes by Congress to address the problem.
Violation of FISA is a felony, potentially having made the program – now ruled illegal – an impeachable offense for Bush while he was in office.
President Bush and Attorney General Alberto Gonzales both confirmed the existence of the TSP, the former having done it on live national television.
According to some sources, the Times had completed the story before the 2004 presidential election, but was pressured to sit on it until 2005 to avoid affecting the outcome of the general election contest between Bush, and Democratic Senator John Kerry.
Numerous lawsuits were filed against the government and the telecommunications companies that allegedly assisted the NSA with the spying program. One such suit was brought against AT&T by the Electronic Frontier Foundation after a former employee named Mark Klein leaked sensitive corporate documents. Those documents purported to show a secret facility operated by NSA employees in room 641A of an AT&T/SBC building in San Francisco. The room is said to contain an optical splitter capable of duplicating all Internet traffic traveling through AT&T's backbone network in that area of the country (which includes international fiber optic undersea cables), where the NSA can monitor it in real time and store it for data mining operations.
It has been suggested that there are such rooms all over the country in the network operations centers of every major domestic telecommunications carrier, though only the AT&T site has ever had documents leaked proving its physical existence.
Under intense pressure from the Bush administration, the Congress passed retroactive immunity for all telecommunications companies that participated in the program in 2007, ending the EFF's lawsuit against AT&T. Although then-Senator Barack Obama once pledged to filibuster telco immunity, he later voted for the bill, called the Foreign Intelligence Surveillance Act of 1978 Amendments Act of 2008.
Senator Hillary Clinton voted no, but it easily passed the Democratic Congress by a vote of 69-28 in the Senate, and 293-129 in the House of Representatives.
With the federal government and both major political parties doing everything within their power to prevent the courts from hearing – much less ruling – on the legality of the Terrorist Surveillance Program, one such lawsuit filed in early 2006 by the Al-Haramain Foundation has defied all attempts to have it dismissed. Despite hopes that the Obama administration would concede the suit to prove that the program – which Obama had previously criticized – was illegal, the President Obama has continued attempts to have the entire case dismissed without even being heard on the grounds that it would endanger national security and reveal state secrets.
Chief Judge Vaughn Walker rejected such claims from both the Bush and Obama administrations, as has the 9th Circuit Court of Appeals.
Al-Haramain's case is unique in that the charity came into possession of a classified government document (accidentally disclosed to them by the government itself) which documented the NSA's illegal wiretaps. The government had argued that even though the Attorney General and President had acknowledged the program's existence, that it was still classified and couldn't be proven to exist and that the plaintiffs had no grounds to sue.
The document was eventually seized by federal officials and Al-Haramain was forced to prove their case in court without even being able to reference the document, much less submit it as evidence. Judge Walker demanded access to the document during the trial and reviewed it in private.
Despite all of this, Judge Walker ruled this afternoon that Al-Haramain had proved its case, that it had been spied upon illegally by the United States government and that the Terrorist Surveillance Program was illegal.
This is not just a defeat for the Bush administration and all of the political class that insists to this day that the program was legal (and if not legal, worth running illegally), but also the Obama administration, which has adopted every major defense of its predecessor and even gone to greater lengths to conceal the program than Bush did. Both administrations made the unprecedented argument that merely allowing the trial to take place would reveal state secrets.
Such arguments are far fetched given the nature of the state secrets doctrine, which traditionally has only allowed the government to make claims that releasing specific documentation and evidence would endanger national security. The privilege is not absolute, meaning it is at the sole discretion of the judge to decide whether or not it has merit and the evidence in question can be withheld. Most federal judges blindly defer to the executive on state secrets matter, making it a de facto absolute privilege.
Judge Walker rejected those claims and subsequent government appeals to the 9th Circuit have also been denied.
As things stand now, the government can either appeal Judge Walker's finding that the program was illegal to the 9th Circuit – but only on the merits of the case, meaning arguing that he was wrong instead of making a technical error – or it appeal the 9th Circuit's ruling on the state secrets claim to the United States Supreme Court.
The Atlantic's Marc Ambinder wrote this afternoon that taking the state secrets claim to the Supreme Court would amount to "go[ing] to war with the judiciary."
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