A Bush-41-appointed Federal District Judge yesterday became the third judge — out of three who have ruled on the issue — to reject the Bush administration’s claim that Article II entitles the President to override or ignore the provisions of FISA. Yesterday’s decision by Judge Vaughn Walker of the Northern District of California also guts the central claims for telecom immunity and gives the lie to the excuses coming from Congress as to why the new FISA bill is some sort of important "concession." More than anything else, this decision is but the most recent demonstration that, with this new FISA bill, our political establishment is doing what it now habitually does: namely, ensuring that the political and corporate elite who break our laws on purpose are immune from consequences.
Judge Walker’s decision (.pdf) was issued in the case of Al-Haramain v. Bush. That lawsuit was brought against the Bush administration by an Oregon-based Muslim charity and two of its American lawyers, alleging that the Government violated FISA — i.e., broke the law — by eavesdropping on their telephone conversations without the warrants required by law. The warrantless eavesdropping occurred as part of Bush’s NSA spying program, which entailed spying on Americans’ international communications without warrants (the lawyers were in London when they spoke on the telephone to their client in Oregon). What makes this case unique is that the lawyers and charity know for certain that they were spied on as part of the secret NSA program because the DOJ accidentally produced transcripts of those calls.
The Bush administration argued that the plaintiffs could not prove their case because, to do so, they would have to rely on documents and information that the President deemed to be "state secrets" (i.e., the Government’s eavesdropping activities) and which are, therefore, unusable in court. That is the argument the court rejected — holding instead that Congress, when it enacted FISA, established a procedure that allows even classified information to be considered by a court, and the President’s Article II powers cannot override the FISA statute. As the Court pointed out, Congress’ core purpose in enacting FISA in 1978 was to bar the President from exercising untrammeled, unchallenged power in the area of eavesdropping. Thus, presidential assertions of secrecy do not override the law.
He’s got a deeper analysis. Read it.
UPDATE: And yes, I am disappointed that Obama supported the new FISA bill which gives telecoms immunity.