NSA wiretaps illegal, rules federal judge

By Jim Kouri

On Wednesday, a federal judge ruled that federal agents failed to obtain a search warrant and therefore illegally wiretapped the phone conversations of an Islamic charity and two American lawyers

Chief U.S. District Court Judge Vaughn Walker in San Francisco said that the evidence reveals the plaintiffs "were subjected to warrantless electronic surveillance."

The case stems from a lawsuit filed in 2006 by the Ashland, Oregon, office of the Saudi Arabian based Al-Haramain Islamic Foundation and its two American lawyers Wendell Belew and Asim Ghafoor.

The attorneys claim their telephone conversations with Al-Hramain official Soliman al-Buthi were wiretapped without warrants in 2004 soon after the Treasury Department had declared the organization a supporter of terrorism.

The two attorneys stated that wiretaps installed without a judge's authorization are illegal. The court case was pending before a trial judge challenging the wiretapping program that ended in 2007.

While the Obama administration agreed with the Bush administration on the necessity of such surveillance, Attorney General Eric Holder told reporters that they arrived at the decision separate from Bush White House arguments.

Judge Walker, a George H.W. Bush appointee to the federal bench, created controversy when he helped overturn Proposition 8, the 2008 ballot measure approved by state voters to ban same-sex marriage. It was discovered that Judge Walker himself is gay.

Those who view the "war on terrorism" as a war — which is stipulated in the congressional resolution of September 14, 2001 — believe enemy combatants are not entitled to constitutional protections. Once an American citizen consorts with the enemy in this war — terrorists and nations that harbor and support terrorism through financing and materials — he or she should be designated an "illegal combatant."

The President possesses broad constitutional powers to take military action in response to the terrorist attacks on the United States on September 11, 2001. Congress has acknowledged this inherent executive power in both the War Powers Resolution and the Joint Resolution passed by Congress on September 14, 2001, immediately following Al-Qaeda attacks in New York and Washington.

The President has constitutional power not only to retaliate against any person, organization, or State suspected of involvement in terrorist attacks on the United States, but also against foreign States suspected of harboring or supporting such organizations.

The President may deploy military force preemptively against terrorist organizations or the States that harbor or support them, whether or not they can be linked to the specific terrorist incidents of September 11.

The resolution passed by congress on September 14, 2001 appears to clearly define Commander-in-Chief's powers to wage war against terrorists. Part of any military action is the gathering of intelligence including intelligence obtained through electronic intercepts.

Here is the exact language of the September 14 resolution:

"To authorize the use of United States Armed Forces against those responsible for the recent attacks launched against the United States.

"Whereas, on September 11, 2001, acts of treacherous violence were committed against the United States and its citizens;

"and Whereas, such acts render it both necessary and appropriate that the United States exercise its rights to self-defense and to protect United States citizens both at home and abroad;

"and Whereas, in light of the threat to the national security and foreign policy of the United States posed by these grave acts of violence;

"and Whereas, such acts continue to pose an unusual and extraordinary threat to the national security and foreign policy of the United States;

"and Whereas, the President has authority under the Constitution to take action to deter and prevent acts of international terrorism against the United States:

"Now, therefore, be it Resolved by the Senate and House of Representatives of the United States of America in Congress assembled."

The Federal Intelligence Surveillance Act (FISA) understandably is a vital part of intelligence gathering and law enforcement. It provides mandatory provisions to insure the legality of the surveillance in order to avoid the tainting of evidence gathered for a criminal prosecution.

For more than a quarter-century, the FISA court had been seen as the only body that could legally authorize secret surveillance of espionage and terrorism suspects. But there are many legal scholars who believe the Bush Administration acted properly and that, unlike the Clinton NSA spy program code named "Echelon," the spying had limited focus on terrorism and was part of a war strategy.

In a time of war, the end users of the electronic surveillance intercepts are not the prosecutors and the courts but the US forces deployed to combat terrorism. Besides branches of the US Armed Services, such forces may include agents with the Central Intelligence Agency, the Federal Bureau of Investigation, the Department of Homeland Security, the National Security Agency, and members of Joint Terrorism Task Forces who represent federal, state and local law enforcement agencies and departments.

If one looks at the term "war on terrorism" as simply symbolic and comparable to the "war on poverty" or the "war on drugs," then one would have an argument that NSA surveillance operation require FISA warrants. Those labeling the NSA spying as Illegal, are those who tend to view terrorism as a criminal justice problem.

And they are the ones who want suspected terrorists to have constitutional protections such as access to attorneys, Fifth Amendment protections against self-incrimination, and the like.

© Jim Kouri