What The New NSA Spying Decision Means for the Immunity Debate
As we reported yesterday, Chief Judge Vaughn Walker of the Northern District of California has just issued a key ruling in Al Haramain v. Bush, one of the cases challenging the NSA's warrantless wiretapping program. Judge Walker is also overseeing the consolidated litigation against the telecoms. With the Senate poised to vote on the FISA Amendments Act and immunity this Tuesday, this decision is particularly timely, as it demolishes key arguments made by proponents of telecom immunity:
Myth: The telecoms can't defend themselves in court because of the government's assertion of the state secrets privilege.
Fact: The Al Haramain decision makes clear that the state secrets privilege will not prevent the telecoms from defending themselves, because FISA's evidentiary procedures preempt the privilege. See Opinion at p. 2 ("FISA preempts the state secrets privilege in connection with electronic surveillance for intelligence purposes.")
Myth: It's not fair to punish the telecoms for relying in good faith on the president's authorization to conduct the surveillance, even though it violated FISA.
Fact: In an extended discussion, the Al Haramain decision makes clear — or rather, shows how clear it already was — that the President's commander-in-chief powers do not give him the authority to ignore FISA. See Opinion at pp. 10-14, 23 ("[With FISA,] Congress appears clearly to have intended to — and did — establish the exclusive means for foreign intelligence surveillance activities to be conducted. Whatever power the executive may otherwise have had in this regard, FISA limits the power of the executive branch to conduct such activities....")
Myth: Getting new language in the FAA asserting that FISA is the exclusive means by which the President can conduct domestic surveillance is a fair trade for gutting FISA's long-standing protections and giving the telecoms immunity.
Fact: Again, the Al Haramain decision makes clear that FISA was already the exclusive means by which the President may authorize electronic surveillance. See Opinion at p. 13 ("[FISA's language] and its legislative history left no doubt that Congress intended to displace entirely the various warrantless wiretapping and surveillance programs undertaken by the executive branch and to leave no room for the president to undertake warrantless surveillance in the domestic sphere in the future.")
Myth: The cases against the telecoms were never going to go anywhere anyway, because of state secrets.
Fact: In discussing what level of evidence a plaintiff needs to demonstrate that they were "aggrieved" by electronic surveillance, and thereby avoid the state secrets issue by taking advantage of FISA's security procedures, Judge Walker specifically refers to the evidence put forward in the cases against the telecoms. See Opinion at p. 51 ("Plaintiff amici [i.e. EFF and others] hint at the proper showing when they refer to “independent evidence disclosing that plaintiffs have been surveilled” and a “rich lode of disclosure to support their claims” in various of the cases [against the telecoms].")
