I just finished reading Vaughn Walker’s opinion explaining that the government will have to give him the document that–the lawyers for al Haramain claim–shows they were wiretapped without a warrant under Bush’s illegal wiretap program, so he can determine whether it really does show what the lawyers claim it shows. If it does, you see, then someone will finally be able to sue Bush and his cronies for violating FISA.
If you don’t have time to read the entire opinion, I recommend you pick it up around page 16–where Walker includes a short summary of how the al Haramain lawyers proved they were surveilled under the illegal program–and then go to page 21–where Walker starts getting really cranky with the government.
Defendants simply continue to insist that § 1806(f) discovery may not be used to litigate the issue of standing; rather, they argue, plaintiffs have failed to establish their “Article III standing” and their case must now be dismissed. But defendants’ contention that plaintiffs must prove more than they have in order to avail themselves of section 1806(f) conflicts with the express primary purpose of in camera review under § 1806(f): “to determine whether the surveillance of the aggrieved person was lawfully authorized and conducted.” § 1806(f).
In reply, plaintiffs call attention to the circular nature of the government’s position on their motion:
Do defendants mean to assert their theory of unfettered presidential power over matters of national security —— the very theory plaintiffs seek to challenge in this case —— as a basis for disregarding this court’s FISA preemption ruling and defying the current access proceedings under section 1806(f)? So it seems.
So it seems to the court also.
It appears from defendants’ response to plaintiffs’ motion that defendants believe they can prevent the court from taking any action under 1806(f) by simply declining to act.
But the statute is more logically susceptible to another, plainer reading: the occurrence of the action by the Attorney General described in the clause beginning with “if” makes mandatory on the district court (as signaled by the verb “shall”) the in camera/ex parte review provided for in the rest of the sentence. The non-occurrence of the Attorney General’s action does not necessarily stop the process in its tracks as defendants seem to contend. Read more