Uncategorized

Understanding Today’s Warrantless Wiretapping Decision

By Michael Scherer | @michaelscherer | March 31, 2010 | +

Four quick bullet points on Judge Vaughn R. Walker’s decision today in Al-Haramain Islamic Foundation v. Barack Obama. (See pdf of ruling here.)

1. The judge’s opinion is pointed and fiercely critical of the Obama Administration’s Justice Department lawyers. At one point the judge dismisses the government’s “impressive display of argumentative acrobatics.” At another point, the judge says the government’s arguments “take a flying leap and miss by a wide margin.”

2. The judge claims that the Obama Administration is attempting to place itself above the law. “Under defendants’ theory, executive branch officials may treat FISA as optional and freely employ the [State Secrets Privilege] to evade FISA, a statute enacted specifically to rein in and create a judicial check for the executive branch abuses of surveillance authority.” He dismisses this argument.

3. It is difficult to square the Justice Department’s use of State Secrets in this case with President Obama’s stated position on state secrets. In a press conference on April 30, 2009, Obama said the following:

I think it is appropriate to say that there are going to be cases in which national security interests are genuinely at stake, and that you can’t litigate without revealing covert activities or classified information that would genuinely compromise our safety. But searching for ways to redact, to carve out certain cases, to see what can be done so that a judge in chambers can review information without it being in open court — you know, there should be some additional tools so that it’s not such a blunt instrument.

And yet, in this case, the Justice Department has refused to turn over any evidence, even though the plaintiff lawyers have acquired the necessary security clearances, and the judge has offered to review the evidence in chambers. Obama announced a new state secrets policy in September of 2009, so it is possible that the Justice Department lawyers will change course at some future point.

4. The judge rules that there is enough unclassified evidence before the court, not including the classified evidence sealed by the State Secrets Privilege and not reviewed by the judge, to determine that the plaintiffs were subjected to unlawful electronic surveillance. He basis this decision, in part, on the refusal of the government to turn over any evidence to show that the surveillance of the charity in question involved a FISA warrant.

Related Topics: al-haramain islamic foundation, justice department, state secrets, warrantless wiretapping, Uncategorized

  • Latest on Swampland

    Pete Souza / The White House via Getty Images
    Closeup May 25, 2012

    Political Picures of the Week, May 18-25

    TIME’s photo editors bring you the best pictures of the past week from the Beltway and beyond.

    From our Partners

    Obama Administration Blocks Global Health Fund To Fight Disease In Developing NationsHuffPost Politics

    From left: AP; ABACAUSA
    2012 Election May 25, 2012

    The Phony War: Obama and Romney Are Debating Character, Not Policy

    More than five months from Election Day, the back-and-forth about Mitt Romney’s record at Bain already feels played out. Unfortunately, there’s good reason to expect the campaign continues in this vein indefinitely. Neither Barack Obama nor Mitt Romney are terribly interested in dwelling on policy platforms. Romney’s plan to slash spending and keep taxes low on the wealthy isn’t especially popular, at least not at any level of detail beyond a blithe promise to shrink the deficit. Meanwhile, Obama’s signature first-term achievements, like health care, the stimulus and Wall Street reform, are all unpopular or tricky to sell. (The Dodd-Frank bill is the most popular of these, but hyping it means offending wealthy donors.) So what we’re getting instead is a superficial duel about character–and, worse, one that’s based on the largely false premise that the better man can better “manage” the economy back to health.

  • FlownOver

    Kwik Kwiz:

    Which is the more tenable public position for the administration?

    (a) We’ve decided the American people don’t need whatever additional protection this administration might provide by continuing to rely on warrantless wiretaps,

    or

    (b) We argued for strong administration authority to continue warrantless wiretaps, but now we have to follow the law as determined by the federal courts.

    Hint: Not (a).

  • http://twitter.com/michaelscherer Michael Scherer

    FlownOver,
    .

    Congress has already amended FISA, and the original Warrantless wiretap program is no longer in existence. So this is not a debate about what Obama is doing now. But a debate about what Bush did before, and how state secrets should be employed in the future.

  • gysgt213

    Michael-Thanks for the clarification.

  • FlownOver

    This is most assuredly a debate about what Obama is doing now, and what any president could do in the future. You may recall the previous administration didn’t give a monkey’s about legislative or judicial restrictions (see, e.g., the Unitary Executive theory), and the Spawn of Cheney still regularly accuses Obama of selling out our safety by permitting any restrictions at all.

    Taking a Bushian position in litigation over the limits of executive power allows the courts to set precedent that can be applied to analogous executive choices now and in the future, while snookering wingnut claims that the current justice department forfeited the game to advance its “liberal agenda.”

    Maintaining the Bush approach of telling a court its very intrusion threatens national security also allows the court to call bull$#!t and assert the Constitutional role of the judicial branch.

  • shepherdwong

    “Congress has already amended FISA…”
    .
    Yes and probably violated the 4th Amendment in the process. And it looks as though any possible remedy will come from the judiciary, much to Obama’s and Congressional Democrats’ eternal shame. So any future of Americans being “secure in their persons, houses, papers, and effects” will come from the courage and fealty to the Constitution of judges such as Walker. Clearly, the rest of our political and media elites have none.

  • http://jcapan.wordpress.com jcapan

    What the good Shepherd said.

  • sophomore67

    Michael –

    Flownover’s clearly right about the politics. Obama has taken great pains to avoid debates about Bush’s national security program, and even so, his teeniest half-steps toward criticism have caused histrionics on the right. For better or worse, defending the wiretap program sounds like a case in point.

  • spob

    Let’s hope this judge is a little smarter than Anna Diggs Taylor–another judge which declared the wiretaps unconstitutional. Taylor’s opinion was worse than Sotomayor’s SJC testimony on term limits.

  • nathan7777

    Glad to know you’re an expert in legal theory, spob.

  • anon76

    He’s actually an expert in diversionary tactics and running discussions off the rails. It’s impressive actually- note how effortlessly he brings up a totally unrelated subject in almost every post!
    .
    Damnit, it’s past midnight and I just discussed a troll on Thursday.

  • apr2563

    spob: Do you have a degree in Constitutional law?

  • bobell

    It’s unlikely that anyone has a degree in constitutional law. The basic legal degree, now called the JD (if you’re old enough, you remember when it was the LL.B. If you’re really old, like me, you actually have one), comes without a designated specialty. There may be exceptions, but to my knowledge you can’t even have a major when studying for the JD.
    .
    There are post-JD degrees (leftovers from the days when an LL.B. was an actual bachelor’s degree, rather than a post-graduate professional degree. There’s the LL.M. , nominally a master’s degree, though actually a post-JD fourth year of law school, and it is possible to get a LL.M. with a specialty. But I don’t know (and haven’t checked) whether you can get an LL.M.anywhere with a specialty in constitutional law. If there are any programs for such an LL.M., there aren’t many. There’s even an academic doctorate, the SJD (not to be confused with the LL.D., which is honorary). Most SJD candicates intend to go into teaching.
    .
    Law schools offer a course in constitutional law, and it’s still compulsory in some of them (and in my opinion it should be compulsory in all). But that’s just a single one-year course, not a major, and certainly no basis for a specialized degree. Constitutional law issues also pop up in many other courses, particularly criminal law but also economic regulation (Commerce Clause, anyone?), property (eminent domain, for example), etc. So perhaps all law degrees are constitutiona law degrees, but that’s the same as saying that none are.

  • grape_crush

    That’s really interesting, bobell…thanks for that info.

  • theotherjimmyolson

    There is nothing in this world sweeter than the sound of someone who knows what he is talking about! Prolly why I hate the sound of my own voice.

  • http://megburcke.wordpress.com megb33

    Great quick breakdown. Thanks Bobell! http://bit.ly/b6pi4E

blog comments powered by Disqus