Judge affirms warrant requirement of FISA

The National Security Agency's warrantless monitoring of international phone calls was illegal, a federal judge ruled March 31.

The Foreign Intelligence Surveillance Act, which requires a warrant for eavesdropping, "takes precedence over the state secrets privilege in this case," wrote Judge Vaughn R. Walker in a case brought about by NSA surveillance of a now disbanded Oregon Islamic charity, the al-Haramain Islamic Foundation, and their lawyers.

Government attorneys had sought to dismiss the case based on the state secrets privilege, a legal doctrine that allows courts to dismiss proceedings that might disclose information that would endanger national security. Vaughn's ruling was based entirely on non-classified evidence, the judge wrote

Under the government's assertion of state secrets privilege, "executive branch officials may treat FISA as optional and freely employ the SSP to evade FISA, a statute enacted specifically to rein in and create a judicial check for executive-branch abuses of surveillance authority," the judge added. Government attorneys sidestepped directly defending the NSA program.

The Bush administration said it ended NSA warrantless surveillance in 2007. The judge's ruling only addresses the plaintiffs' complaints under FISA; claims that the government violated the separation of powers principle, the First, Fourth and Sixth Amendments of the Constitution would require further litigation. The plaintiffs must chose by April 16 whether to press forward or to accept damages for the FISA violation.

For more:
- check out Judge Vaughn R. Walker's ruling (.pdf)
- read this New York Times article
- this Electronic Frontier Foundation blog post on the ruling

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