Court Rules that Bush Surveillance Program Was Unlawful

Just as Democrats are leading the effort to extinguish lawsuits against telecommunication companies for unlawful surveillance of citizens, a federal judge has ruled that President Bush and his aides violated federal law in conducting the surveillance program. Not addressed in the opinion of U.S. District Court Judge Vaughn Walker is that a violation of the FISA law (which he found trumps the military and state secrets privilege) is a felony. Meaning? President Bush knowingly committed felonies over thirty times and Congress has remained completely passive. In the meantime, Walker has ruled that the Al Haramain Islamic Foundation must still supply evidence that it was the subject of the illegal program despite the fact that the courts will not let it use evidence accidentally disclosed by the government (that seems to establish that fact).

When the surveillance program was first revealed, I testified in Congress that the program was manifestly unlawful and constituted an impeachable offense. Click here. Many Bush supporters insisted that it was perfectly legal despite the clear language in the statute making it a crime. People like Gen. Hayden insisted the NSA lawyers reviewed the program and said that there was no doubt that it was legal.

Walker saw no ambiguity or good–faith excuse:

Congress included in the FISA bill a declaration that the FISA regime, together with the Omnibus Crime Control and Safe Streets Act of 1968 … were to be the “exclusive means” by which domestic electronic surveillance for national security purposes could be conducted. … 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.

The question is whether any of this will motivate some Democrats to take action and stop protecting the President from being held accountable for these crimes.

The decision on the charity is unfortunate. The government is still allowed to demand that the charity prove that it was a target while refusing to disclose any information needed to establish that fact. It is an obvious area for congressional intervention, but thus far Congress has only intervened to kill such lawsuits and deter courts from rendering such judgments.

For the full story, click here.

15 thoughts on “Court Rules that Bush Surveillance Program Was Unlawful”

  1. Honorable mesop727272:
    In my sphere of reality, the point of blogging is to, hopefully, donate to our collective “thinking”. Believe it, or not, the method by which I use to express my ideas is not to impress upon others any level of intelligence (“I”-the ego, have none) but for the sake of brevity.
    This response, being the last, as far as you are concerned, is the only instance where possessive pronouns would be part of anything that I would post. I do not engage in attacking the posts of other writers, for they have a right to their opinions, and a right to be “wrong”! In the context of the universe’s unquantifiable potential, we (the individual, and collective ego) are all mere reflections of a higher order of consciousness that operates outside of the “frequency response” of human empiricism, and comprehension. So any effort to affirm our superiority, at the expense of others, is folly, and creates inertia in the journey towards our understanding!

    Let’s leave it at that.

  2. DofG:

    Well I didn’t expect a point by point explanation but an end run around the questions won’t help your “resonance with the few.” I suppose the “few” are those enlighten souls who make some sense of your gobbledygook. I have no idea what you mean by the “Law of Universality,” since I have only seen it used in the context of statistical mechanics, or as argument for universal criminal jurisdiction in international law disputes. That Congress has lost its connection with the founders seems self-evident, but I fail to see how “universality'” or even memorizing the entire text of Hobbes’ “Leviathan” (where the concept of natural law is discussed) would aid it in the determinations of road projects, or budgets, or even war making decisions.

    On your final point that “[t]he more one explains, the more distant the truth,” I must plead complete astonishment. Assuming this as a premise, you must then believe that the possessors of all truth must necessarily be those who can explain it the least. Rather like owning the Hope Diamond but being unable to explain that is is essentially a compressed rock. I hope you find your chosen few, but I suspect that most of us here won’t make the cut.

  3. To mespo727272:
    Natural law which I spoke of refers to, first, the Law of Universality.
    The ancillary laws which are expressions of the first: Newton’s Laws of Motion, and Universal Gravitation. And, where applicable, one may include the other laws you mentioned-Thermal Dynamics, Conservation, or even General Relativity etc.
    The point is that the congress, overtime, has lost its connection to the predications set forth by the founding fathers who were influenced by the Enlightenment.
    The final point is that the purpose of my posts is not to argue, or to presume to teach, but to find resonance with the “few”.
    And to your point about Aristotle: The more one explains, the more distant the truth. And if the universe is without beginning, then, how can anything truly be explained? So we should not confuse the magnitude of Aristotle’s thinking with the magnitude of his celebrity, for he, as we all, shared the same reservior!

  4. DofG:

    “Throughout its history, the congress has never truly understood that liberty, especially in ignorance, can never take “liberties” without the counsel of Natural Law, for it is that platform from which all things exist, and function.”


    I read your post twice, at first thinking it was mere purple prose posited to make the author appear intelligent. However, the statement above intrigues me. Pray tell what about “liberty” does Congress not understand “especially in ignorance” (can lack of understanding exist except in ignorance)? What is the “counsel” of natural law? And how does one obtain this “counsel”? In what way is “natural law,” — usually defined as the laws of nature with general applicability like gravity,thermal dynamics, etc. — the “platform from which ALL things exist”? [emphasis added to discern whether it involves human originated concepts]. Does liberty exist by “natural law,” i.e. is it the natural state of mankind? Do you define natural law as including the “law of the jungle” which was clearly the first law of survival and do you believe Congress should model its formulations of policy on that rather barbaric “natural law”? Finally, why should Congress not act through positive law rather than attempting to discern the contours of “natural law” which evaded even monumental thinkers such as Aristotle who found an appeal to such a state of nature more utilitarian that logically sound? [see Shellens on “Aristotle and Natural Law”, pp. 75-81]. These questions do interest me and I submit them for your reply.

  5. Politicians are “practical”, and so are weasels!

    When Man enact laws that are not rooted in the immutablitity of Cosmic Law, he is like a ship at sea, with no sail, and no rudder! This results in unending, multiplicitous relativism, where the law gives deference to the moment, and those few who presume substantive power to the detriment of the “many”. This also gives rise to a system, perverted by the ignorance of its own standing in Nature, making it necessary to create thousands of laws, and a thousand lawyers to become their advocate, or their adversary! Throughout its history, the congress has never truly understood that liberty, especially in ignorance, can never take “liberties” without the counsel of Natural Law, for it is that platform from which all things exist, and function.
    The congress, when voiding its own laws, and constitutional responsibility for the sake of political expediency, sets into motion incalculable ramifications, and unintended consequences, exacted by the misapplication of Natural Law. Anyone, with any objectivity, can see the results of misapplied Natural Law in almost every aspect of American life.

  6. Jill,
    We can only hope that Congress will look at this case before their vote on the FISA capitulation. However, I am afraid that the Telecoms have spread too much money around Congress to stop this bill from passing. I am heartened that Judge Walker is doing the right thing, notwithstanding who nominated him to the court. The Constitution is not about politics. At least it shouldn’t be.

  7. If Judge Walker isn’t buying the “State Secrects” argument (for which I am deeply grateful) then why can’t he get clearance to look at the information the govt. has to see if illegal spying occurred. He could then order the govt. to send redacted evidence to the charity so they may proceed with their case.

    I do hope Congress bothers to take this case into account before they fold on FISA.

  8. So is OBAMA perpetuating the “illegality”?


  9. NIBLET:

    I find your first posting more indicative of your work than the second. Let it ride.

  10. JT:

    Judge Vaughn Walker (appointed by Bush the Elder) is doubly important since he has the telecom suits in his court under consolidation and has refused to throw them out up to this point.

    On your other comment that “[p]eople like Gen. Hayden insisted the NSA lawyers reviewed the [surveillance] program and said that there was no doubt that it was legal.” He’s the same guy who vehemently insisted that the words “probable cause” were nowhere to be found in the 4th Amendment’s prohibition against unreasonable searches and seizures. I would take his legal analysis with a tiny grain of salt.

  11. In a leftists America, you can even find a judge that would call fishing with your kids patently unlegal..


    July 4, 2008
    New York Times Editorial

    New and Not Improved

    Senator Barack Obama stirred his legions of supporters, and raised our hopes, promising to change the old order of things. He spoke with passion about breaking out of the partisan mold of bickering and catering to special pleaders, promised to end President Bush’s abuses of power and subverting of the Constitution and disowned the big-money power brokers who have corrupted Washington politics.

    Now there seems to be a new Barack Obama. First, he broke his promise to try to keep both major parties within public-financing limits for the general election. His team explained that, saying he had a grass-roots-based model and that while he was forgoing public money, he also was eschewing gold-plated fund-raisers. These days he’s on a high-roller hunt.

    Even his own chief money collector, Penny Pritzker, suggests that the magic of $20 donations from the Web was less a matter of principle than of scheduling. “We have not been able to have much of the senator’s time during the primaries, so we have had to rely more on the Internet,” she explained as she and her team busily scheduled more than a dozen big-ticket events over the next few weeks at which the target price for quality time with the candidate is more than $30,000 per person.

    The new Barack Obama has abandoned his vow to filibuster an electronic wiretapping bill if it includes an immunity clause for telecommunications companies that amounts to a sanctioned cover-up of Mr. Bush’s unlawful eavesdropping after 9/11.

    Now, he supports the immunity clause as part of what he calls a compromise but actually is a classic, cynical Washington deal that erodes the power of the special court, virtually eliminates “vigorous oversight” and allows more warrantless eavesdropping than ever.

    The Barack Obama of the primary season used to brag that he would stand before interest groups and tell them tough truths. The new Mr. Obama tells evangelical Christians that he wants to expand President Bush’s policy of funneling public money for social spending to religious-based organizations — a policy that violates the separation of church and state and turns a government function into a charitable donation.

    On top of these perplexing shifts in position, we find ourselves disagreeing powerfully with Mr. Obama on two other issues: the death penalty and gun control.

    Mr. Obama endorsed the Supreme Court’s decision to overturn the District of Columbia’s gun-control law. We knew he ascribed to the anti-gun-control groups’ misreading of the Constitution as implying an individual right to bear arms. But it was distressing to see him declare that the court provided a guide to “reasonable regulations enacted by local communities to keep their streets safe.”

    We were equally distressed by Mr. Obama’s criticism of the Supreme Court’s barring the death penalty for crimes that do not involve murder.

    Mr. Obama’s shifts are striking because he was the candidate who proposed to change the face of politics, the man of passionate convictions who did not play old political games.

    There now appears to be few vital differences between Mr. Obama and Senator John McCain on issues like the war in Iraq, taxes, health care and Supreme Court nominations. We don’t want any “redefining” on these big questions. This country needs change it can believe in.

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