For RK .... yes it can still be about Bush :D

http://www.nytimes.com/2010/04/01/us/01nsa.html?hp The WSJ has it too but I can't get the entire article.

Federal Judge Finds N.S.A. Wiretapping Program Illegal
By CHARLIE SAVAGE and JAMES RISEN
WASHINGTON — A federal judge on Wednesday ruled that the National Security Agency’s warrantless surveillance program was illegal, rejecting the Obama administration’s effort to keep shrouded in secrecy one of the most disputed counterterrorism policies of former President George W. Bush.

In a 45-page opinion, Judge Vaughn R. Walker ruled that the government had violated a 1978 federal statute requiring court approval for domestic surveillance when it intercepted phone calls of Al Haramain, a now-defunct Islamic charity in Oregon, and of two lawyers who were representing it in 2004. Declaring that the plaintiffs had been “subjected to unlawful surveillance,” the judge said that the government was liable to pay them damages.

The ruling delivered a blow to the Bush administration’s claims that its warrantless surveillance program, which Mr. Bush secretly authorized shortly after the terrorist attacks of Sept. 11, 2001, was lawful. Under the program, the National Security Agency monitored Americans’ e-mail messages and phone calls without court approval, even though the Foreign Intelligence Surveillance Act, or FISA, required warrants.

After The New York Times reported on the existence of the program in December 2005, the Bush legal team argued that it was lawful because the president’s wartime powers enabled him to override the statute. Jon Eisenberg, a lawyer represented Al Haramain, 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.”

The Justice Department said it was reviewing the decision and had made no decision about whether to appeal it.

The ruling by Judge Walker, the chief judge of the Federal District Court in San Francisco, also rejected the Justice Department’s claim — first asserted by the Bush administration and continued under President Obama — that the charity’s lawsuit should be dismissed without a ruling on the merits because allowing it to go forward could reveal state secrets.

The judge characterized that expansive use of the so-called state-secrets privilege as amounting to “unfettered executive-branch discretion” that had “obvious potential for governmental abuse and overreaching.”

That view, he also said, would enable government officials to flout the warrant law — even though Congress had enacted it “specifically to rein in and create a judicial check for executive-branch abuses of surveillance authority.”

A department spokeswoman, Tracy Schmaler, noted that the Obama administration had overhauled the department’s procedures for when to invoke the state secrets privilege, requiring senior officials to personally approve any assertion before lawyers could make it in court. Ms. Schmaler said that approach would ensure it is invoked only when “absolutely necessary to protect national security.”

The ruling is the second time a federal judge has declared a program of wiretapping without warrants to be illegal. But a 2006 decision by a Detroit judge, Anna Diggs Taylor, was later reversed on the grounds that the plaintiffs in that case could not prove that they had been wiretapped and so lacked legal standing to sue. Several other lawsuits filed over the program have failed, or been dealt a severe blow, because of similar concerns over standing.

By contrast, the Al Haramain case was closely watched because the government inadvertently disclosed a classified document that made clear that the charity had been subjected to surveillance without warrants.

Although Judge Walker eventually ruled that the plaintiffs could not use that document to prove that they had standing, Mr. Eisenberg and six other lawyers working on the case were able to use public source documents — including a 2007 speech by an F.B.I. official who acknowledged that Al Haramain had been placed under surveillance — to prove the wiretapping.

Judge Walker’s opinion cataloged other such evidence and declared that the plaintiffs had shown that they were wiretapped in a manner that required a warrant. He said the government had failed to produce a warrant, so he granted summary judgment in favor of the plaintiffs.

But Judge Walker limited liability in the case to the executive branch as an institution, rejecting any finding of personal liability by government officials, including Robert S. Mueller III, the F.B.I. director.

In 2008, Congress overhauled the Foreign Intelligence Surveillance Act to bring federal statutes into closer alignment with what the Bush administration had been secretly doing. The legislation essentially legalized certain aspects of the warrantless surveillance program.

But the overhauled law still requires the government to obtain a warrant if it is focusing on an individual or entity inside the United States. The surveillance of Al Haramain would still be unlawful today if no court had approved it, current and former Justice Department officials said.

Call me when the appeals are done.

A crimp to some Patriot Act provisions?

Nope, this is a totally illegal program not authorized by the Patriot Act. In fact, this wiretapping is prohibited by statute. Bush -- and shamefully, not Obama -- have this cockamamie theory that somehow the war making power of the President trumps not only the statutory prohibition, but also the 4th Amendment prohibition on this conduct. An extremely dubious legal proposition to say the least. I predict that the Obama DOJ won't appeal. 9th Circuit is the best Court in the country for this sort of an appeal for the Plaintiffs. Then the government would have to get the Supremes to grant a writ. Then Obama would be embarassed to have his (then probably two or three ) appointees vote against him. And neither Scalia nor Uncle Clarence have been receptive to the argument that the President is above the Constitution. The administration loose that appeal at least 6-3. Probably 7-2 (although Kennedy isn't really predicable.) Roberts and Alito would say Christ got a fair trial and light punishment.

Roberts and Alito would say Christ got a fair trial and light punishment. Originally Posted by TexTushHog

LOL

Frankly DG, I'm not sure I disagree with the ruling...and don't proclaim that Bush was the second coming of JC. I just think he did a much better job than you do.

I don't know, or really care enough to delve into it, the details of this case. But, IMHO if Haramain is a US citizen, then he is afforded the rights of the rest of us...and a warrant most certainly should have been acquired. OTOH, if he is a foreigner, in our country, I say "F*ck Him"...the rights we protect are for our citizens. I know that may not be the law as determined by the USSC, at least today, but that is my opinion.

But I do find it interesting that when there are discussions along these lines, the Libs run to the comfort of "individual rights" as opposed to defending the results of "lives saved". However, when we get off on something like healthcare, they run to the confort of "lives saved" and don't mind trampling on "individual rights". At least I believe in "individual rights" for our citizens in most every instance.

Haramain is a now defunct Islamic charity. However, it's lawyers were American citizens and it is the monitoring of their phone calls that gave them standing to be Plaintiffs in the case. I haven't read the case yet, but I understand that the Court held that Haramain didn't have standing, but the lawyers did.

The 4th Amendment, doesn't distinguish between citizens and other who are in the U.S., nor should it. If I am traveling in the UK, I expect to have the same civil liberties as a citizen of the UK, save and except a few reserved for citizen, like the right to vote. They shouldn't have a right to arrest me without probable cause. I should have a right to an attorney were I to be arrested in the UK, etc. And we cannot expect to be granted those rights abroad if we deny them to citizens of other countries when they are our guests.

I don't know about you, but I travel to France, the UK, Italy, Switzerland, Germany, Holland, and a number of countries in the Caribbean on a fairly regular basis. I also have occasionally traveled to other locations in Europe, throughout Asia and on rare occasion in South and Central America. I don't care to be mistreated in any of those countries because my country mistreats their citizens. To say "F*ck Him"...the rights we protect are for our citizens," is as you acknowledge wrong. But it's also extraordinarily foolish.

Haramain is a now defunct Islamic charity. However, it's lawyers were American citizens and it is the monitoring of their phone calls that gave them standing to be Plaintiffs in the case. I haven't read the case yet, but I understand that the Court held that Haramain didn't have standing, but the lawyers did.

The 4th Amendment, doesn't distinguish between citizens and other who are in the U.S., nor should it. If I am traveling in the UK, I expect to have the same civil liberties as a citizen of the UK, save and except a few reserved for citizen, like the right to vote. They shouldn't have a right to arrest me without probable cause. I should have a right to an attorney were I to be arrested in the UK, etc. And we cannot expect to be granted those rights abroad if we deny them to citizens of other countries when they are our guests.

I don't know about you, but I travel to France, the UK, Italy, Switzerland, Germany, Holland, and a number of countries in the Caribbean on a fairly regular basis. I also have occasionally traveled to other locations in Europe, throughout Asia and on rare occasion in South and Central America. I don't care to be mistreated in any of those countries because my country mistreats their citizens. To say "F*ck Him"...the rights we protect are for our citizens," is as you acknowledge wrong. But it's also extraordinarily foolish. Originally Posted by TexTushHog

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