Briefs on FISA are coming out in Northern California so fast and furious it’s hard to keep them straight. Just as a reminder there are two main cases:
- al-Haramain, in which the Bush (and now Obama) Administration has invoked State Secrets to prevent lawyers for the defunct charity al-Haramain from using clear evidence that Bush wiretapped them illegally to prove that Bush wiretapped them illegally
- Retroactive immunity (Jewel/EFF), in which the Electronic Frontier Foundation is challenging the retroactive immunity statute Congress passed last year on Constitutional grounds
The Obama stance on these two cases is worth looking at in conjunction because the Obama position toward congressionally-passed law is perfectly crafted to gut civil liberties (and Article III authority), all based on Obama’s interpretation of "if."
Astoundingly, both al-Haramain and retroactive immunity are almost certainly headed for the Appeals Court to rule on the meaning of two "if’s" (and one "shall") appearing in FISA-related law.
"If" the Attorney General Wants the President to Avoid Penalty for Illegal Wiretapping
Here’s the language Judge Walker just reviewed in FISA 1806(f) in the al-Haramain case:
Whenever a court or other authority is notified pursuant to subsection (c) or (d) of this section, or whenever a motion is made pursuant to subsection (e) of this section, or whenever any motion or request is made by an aggrieved person pursuant to any other statute or rule of the United States or any State before any court or other authority of the United States or any State to discover or obtain applications or orders or other materials relating to electronic surveillance or to discover, obtain, or suppress evidence or information obtained or derived from electronic surveillance under this chapter, the United States district court or, where the motion is made before another authority, the United States district court in the same district as the authority, shall, notwithstanding any other law, if the Attorney General files an affidavit under oath that disclosure or an adversary hearing would harm the national security of the United States, review in camera and ex parte the application, order, and such other materials relating to the surveillance as may be necessary to determine whether the surveillance of the aggrieved person was lawfully authorized and conducted. In making this determination, the court may disclose to the aggrieved person, under appropriate security procedures and protective orders, portions of the application, order, or other materials relating to the surveillance only where such disclosure is necessary to make an accurate determination of the legality of the surveillance. [my emphasis]
The government (under both Bush and Obama) has argued that the "shall" in 1806(f)–requiring the District Court Judge to review in camera and ex parte the materials relating to the surveillance to see if was legal–only kicks in after the "if" tied to the Attorney General in it. That is, the District Court Judge only reviews the underlying materials if the Attorney General files an affidavit saying that an adversary hearing would harm national security.
Judge Walker thinks that’s bullshit. Read more