Judge: Warrantless Surveillance Was Illegal

As first reported by Firedoglake’s Marcy Wheeler, a federal judge has ruled that the Bush administration illegally wiretapped the defunct Islamic charity al-Haramain, a major legal step in a years’-long battle to determine whether Bush’s constellation of warrantless surveillance programs begun after the 9/11 attacks broke the law. The New York Times:

Judge Walker did not directly address the legal arguments made by the Bush administration in defense of the N.S.A. program after The New York Times disclosed its existence in December 2005: that the president’s wartime powers enabled him to override the FISA statute. But lawyers for Al Haramain were quick to argue that the ruling undermined the legal underpinnings of the war against terrorism.

One of them, Jon Eisenberg, said Judge Walker’s ruling was an “implicit repudiation of the Bush-Cheney theory of executive power.”

“Judge Walker is saying that FISA and federal statutes like it are not optional,” Mr. Eisenberg said. “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.”

Marcy thinks the Justice Department will decline to appeal, thereby letting Judge Vaughn Walker’s determination of illegality stand, but will also keep “details of how and what it did secret” and forestall a challenge on the limits of the government’s authority to determine whether certain disclosures jeopardize national security. (The so-called ‘State Secrets’ doctrine.) Her argument has the virtue of providing the administration with a political setback for its resurgent adversaries from the Bush era — who are fighting to stop the closure of Guantanamo Bay or link it to the abandonment of civilian trials for terrorists — while preserving its own legal authority.