Understanding Today’s Warrantless Wiretapping Decision

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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.

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