By: Harry Waisbren
Big news on the FISA front and to civil libertarians at large, as District Court Judge Vaughn Walker concludes that not only was the NSA wiretapping program illegal, but that the Foreign Intelligence Surveillance Act (FISA) “should be given more weight than the state secrets privilege.”
Walker ruled that government investigators illegally wiretapped phone conversations from the Islamic charity, the Al-Haramain Islamic Foundation, and two American lawyers. Marcy Wheeler explains:
Walker is basically saying, “Well, government, if you won’t give us any evidence to prove you legally wiretapped al-Haramain, and given all the evidence they’ve presented proving they were wiretapped, then they win!”
Marcy provides further analysis explaining why the Department of Justice is likely to accept Walker’s ruling, extrapolating on why she thinks he “crafted his ruling to give the government a big incentive not to appeal the case.”
If this ruling stands, al-Haramain will get a ruling that the wiretapping was illegal. The government will be directed to purge any records it collected from its databases (I’ll explain in a later post why I think this will present some problems). And it’ll be asked to pay a fine, plus legal fees. But the fines, at least ($100 per day per day of illegal wiretapping) might end up being a relative pittance–tens of thousand or hundreds of thousand of dollars. Sure, there will be punitive fines and legal fees for four years of litigation. But the government was happy to settle Hatfill and Horn for millions, why not have this be done for the same range of millions?
What al-Haramain won’t get–unless it litigates some of the other issues in the case, which likely canbe dismissed with State Secrets–is access to what the government was doing. Or details of how it came to be wiretapped illegally.
I’m betting that the government will be willing to accept the ruling that it illegally wiretapped al-Haramain in exchange for the ability to leave details of how and what it did secret, leaving the claim of State Secrets largely intact.
Hmmm, doesn’t seem like precisely the sort of accountability-inducing victory that true civil libertarians from across the political spectrum are hoping for. Then again, it certainly does seem like a positive step on the whole, and we have had far too few of those lately!
For more analysis, you can check the clip of Keith Olbermann interviewing James Risen of the New York Times about this below:
Get FISA Right 
Good analysis, Harry. As party to one of the anti-telco lawsuits (ACLU of CA), I immediately honed in on the fact that the Government gets to sidestep real reform, not to mention the telcos who are still off the hook, scott free. It’s a good time to demand revisiting the issues IF the Government accepts the ruling. If it appeals, it will be awhile before anyone is refocused! Let’s hope.
Well, Marcy certainly seems convinced that the government is incentivized to such a large extent not to appeal that it is extremely unlikely…
If/when the government does accept the ruling though, where do you think pressure should be applied to really have this issue revisited?
Dan Froomkin reports on Walker’s ruling, extrapolating how it is the challenge to state secrets that is the most important aspect: http://www.huffingtonpost.com/2010/04/01/ruling-against-bush-wiret_n_522279.html
Dave Dayen at FireDogLake reports on Marcy Winograd bringing this ruling into her primary race against Jane Harman: http://news.firedoglake.com/2010/04/01/ca-36-winograd-slams-harman-on-wiretapping-after-al-haramain-ruling/
Dayen may, indeed, be correct that, if this issue were to affect any congressional race, it would be this one…
Interesting comments, all. I am somewhat encouraged by this ruling and Mr. Risen’s analysis, including the assertion that the current administration intends to follow the ruling. However, I hope that the “free pass” for the telcoms doesn’t continue into the future; it is probably too late to get it reversed at this point.
I am particularly gratified by the “FISA trumps Sate Secrets” outlook and Mr. Risen’s assertion that the decision helps bring the Executive Branch back under—not exactly control, but limitation, at least—of Congress, helping to “repeal”, as it were the “Imperial Presidency”, which I think many of us had as a goal when electing Pres. Obama (at least, it was a large factor in my middling-early support).
Brava for Marcy Winograd; more power to her! Though I am on the opposite coast, she seems to be from whose presence in the House all of us could benefit. Haven’t had a chance to check the above links, yet; will try to do so this weekend.
Am I correct in assuming that this ruling was let stand without appeal? Certainly we should ensure as much as possible that Ms. Kagan shares the same respect for independence of the judicial branch.