Wednesday, March 31, 2010

Warrantless wiretapping illegal? Obviously!

Sometimes, in our contemporary, contentious legal environment, it's hard to be sure that common sense will prevail in the end, as it should. But if today's federal court decision in San Francisco is any indication of what's ahead for the U.S. government in the aftermath of the disastrous administration of George W. Bush, there's still hope that things will be put right, or at least as right as they can be. We're talking, of course, of U.S. District Court Judge Vaughan Walker's decision today that the Bush-era warrantless wiretapping program was illegal. The chief judge of San Francisco's federal bench issued a 45-page ruling finding that the eavesdropping on the Al-Haramain charity based in Oregon was "unlawful surveillance" and the government was liable for damages, according to the New York Times. Compensatory damages could be as high as $20,000 for each of three individuals whose calls were intercepted by the National Security Agency, and as much as $200,000 each in punitive damages, according to one of Al-Haramain's attorneys, Jon Eisenberg of San Francisco, the Times said. The government has not announced whether it would appeal the ruling, which rejected a major tenet of the Bush administration's war on terror started after the 2001 terrorist attacks on the World Trade Center and the Pentagon. The Bush administration had long contended, and the Obama administration had agreed implicitly, that the president had the power to override the Foreign Intelligence Surveillance Act, a 1978 law requiring the government to obtain warrants from a secret court before it engaged in domestic espionage, and that it did not have to answer questions about it. The government contended Al-Haramain's challenge should be dismissed because requiring federal officials to respond could reveal national secrets. Instead, Walker issued a summary ruling in favor of the charity. Eisenberg said the ruling was "was an “implicit repudiation of the Bush-Cheney theory of executive power,” according to the Times. "Judge Walker is saying that FISA and federal statutes like it are not optional. “The president, just like any other citizen of the United States, is bound by the law. Obeying Congressional legislation shouldn’t be optional with the president of the U.S.” A spokeswoman for the U.S. Justice Department, Tracy Schmaler, said the Obama administration had already made it more difficult for the government to invoke the so-called "state-secrets privilege," as it had in the Al-Haramain case. Now, she said, the privilege could only be invoked when it was "absolutely necessary to protect national security,” the Times said. The Justice Department has not yet said whether it would appeal.

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