Analysis: NSA Spying Judge Defends Rule of Law, Congress Set to Strip His Power
Just days before the Senate will convene to give a final blessing to President Bush's secret, warrantless wiretapping program, a federal court judge ruled that his legal justification for the surveillance has no legal merit.
He's the same judge Congress is trying to save the nation's telecoms, such as AT&T, Verizon and Sprint, from having to face in court.
Late Wednesday, U.S. District Chief Judge Vaughn Walker issued a ruling (.pdf) in a case against the government alleging illegal spying, finding that in 1978 Congress had clearly set out the rules for wiretapping inside the United States and that Bush's claims to have inherent authority outside of those rules did not pass Constitutional muster.
"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 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."
Walker, the chief judge of the Northern District of California, affirmed that the Foreign Intelligence Surveillance Act is the exclusive legal method for conducting surveillance inside the United States against suspected spies and terrorist. The Bush Administration argues that Congress's vote to authorize military force against Al Qaeda and the president's inherent war time powers were exceptions to the exclusivity provision.
Not so, according to Walker:
"This provision 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. "
As Threat Level pointed out last night, the ruling is likely to have little real consequence other than embarrassing Congress for failing to have the courage to stand up to defend the laws it itself passed. Instead of holding hearings and sending subpoenas, Congress is set to largely legalize dragnet surveillance being set up inside American telecom infrastructure and to make it very clear that they are serious about stopping warrantless wiretapping, they are adding exclamation points to the exclusivity provision.
http://blog.wired.com/27bstroke6/200...is-nsa-sp.html