Judge misreads FISA cases

NY Times:

A federal judge in California said Wednesday that the wiretapping law established by Congress was the “exclusive” means for the president to eavesdrop on Americans, and he rejected the government’s claim that the president’s constitutional authority as commander in chief trumped that law.

The judge, Vaughn R. Walker, the chief judge for the Northern District of California, made his findings in a ruling on a lawsuit brought by an Oregon charity. The group says it has evidence of an illegal wiretap used against it by the National Security Agency under the secret surveillance program established by President Bush after the terrorist attacks of Sept. 11, 2001.

The Justice Department has tried for more than two years to kill the lawsuit, saying any surveillance of the charity or other entities was a “state secret” and citing the president’s constitutional power as commander in chief to order wiretaps without a warrant from a court under the agency’s program.

But Judge Walker, who was appointed to the bench by former President George Bush, rejected those central claims in his 56-page ruling. He said the rules for surveillance were clearly established by Congress in 1978 under the Foreign Intelligence Surveillance Act, which requires the government to get a warrant from a secret court.

“Congress appears clearly to have intended to — and did — establish the exclusive means for foreign intelligence activities to be conducted,” the judge wrote. “Whatever power the executive may otherwise have had in this regard, FISA limits the power of the executive branch to conduct such activities and it limits the executive branch’s authority to assert the state secrets privilege in response to challenges to the legality of its foreign intelligence surveillance activities.”

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Actually FISA has an exception during times of war and the application of the statute as read by the judge in this case would make it clearly unconstitutional. This is just an absurd reading of the case law and the statute.

The San Francisco Chronicle has a very different take on the story from the Times and its lead suggest that the Judge tossed the case against the Bush administration.

A federal judge in San Francisco dismissed a lawsuit Wednesday that sought to prove President Bush acted illegally in 2001 when he ordered the wiretapping of phone calls between Americans and suspected foreign terrorists without court approval.

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It does not sound like much a victory for the plaintiffs.