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The FISA revision passed last year gave immunity to those who participated in illegal wiretapping.  But the question remains as to whether it is constitutional to deny recourse to those who suffered damages from being illegally wiretapped.

If a party could prove they were illegally wiretapped, then they might be able to convince a judge to protect their constitutional rights.

Whereas our elected representatives elected not to protect the Constitution (and granted this retroactive immunity), Accused Terrorists and their lawyers are trying like hell to do just this.

And George Bush, Alberto Gonzales, Dick Cheney, David Addington and their enablers in Congress are in a heap of trouble with a federal court.

Here is the Background:

The al-Haramain Islamic Foundation, a Saudi organization that once operated in Portland, Ore., filed a description of classified government records in a lawsuit Tuesday and immediately asked a judge for a private review.

According to a source familiar with the case, the records indicate that the National Security Agency intercepted several conversations in March and April 2004 between al-Haramain's director, who was in Saudi Arabia, and two U.S. citizens in Washington who were working as lawyers for the organization.

The government intercepted the conversations without court permission and in violation of the law, al-Haramain asserts in its lawsuit. It contends that eavesdropping on the conversations bypassed the Foreign Intelligence Surveillance Act, the 1978 law that requires the government to show probable cause that a U.S. resident is an agent of a terrorist group or foreign government and to obtain a warrant from the secret FISA court before monitoring that person's calls.

al-Haramain accidentally saw the documents that showed they had been wiretapped without a warrant.

But the Government took the documents back and refused to release the documents for discovery to the court.  No one outside the Bush Administration has access to the documents.

So the Government has argued and the court has questioned whether al-Haramain has standing to sue George Bush for the illegal wiretapping.

And yes the wiretapping was illegal under FISA.  Remember Jim Comey's testimony before the Senate Judiciary Committee on May 15, 2007?

On May 15, 2007, James Comey gave an uninterrupted description of what happened on Wednesday, March the 10th, 2004.  James Comey revealed an incredible, late-night, clandestine attempt by Alberto Gonzales and Andrew Card to get a signature from critically ill John Ashcroft.  The point of this secretive mission was to get the disoriented Ashcroft to sign-off on the warrantless wiretapping program, circumventing the Acting Attorney General, James Comey.  Comey had refused to sign off on the plan as "without legal basis".  Although why the program was not legal is still a mystery, many have surmised it was probably because the technology was permitting monitoring of US citizens, in contradiction of FISA law.

So who signed off on the Illegal Program?  Not the Attorney General, as required by executive order...  The President's Counsel, Alberto Gonzales signed the order....

For several weeks, the illegal program continue under ONLY ALBERTO GONZALES's signature.  Thus the illegal program was in place prior to the hospital showdown, but it was KNOWINGLY continued illegally after March 10, 2004 when Comey refused to sign off on it.

IF only there were a plaintiff illegally wiretapped to challenge the illegal actions of the Government......  


Ruh Roh, George, Here is the Ruling:

U.S. District Judge Vaughn Walker said the lawyers' amended lawsuit, even absent the classified document, showed there was enough evidence for the case to continue. The amended lawsuit pieces together snippets of public statements from government investigations into Al-Haramain, the Islamic charity the lawyers were working for and, among other things, a speech about their case by an FBI official.

"The plaintiffs have alleged sufficient facts to withstand the government's motion to dismiss," Walker ruled in a 25-page opinion (.pdf). Walker said the nation's spy laws now demand that he view the classified document and others to decide whether the lawyers were spied on illegally and whether Bush's spy program was unlawful.

That's right, the lawsuit proceeds, and guess what:  for the first time, the Court will review the evidence that the Administration was acting illegally.  The documents will no longer be hidden within the Administration:

On Monday, Walker ruled: "To be more specific, the court will review the sealed document ex parte and in camera. The court will then issue an order regarding whether plaintiffs may proceed — that is, whether the sealed document establishes that plaintiffs were subject to electronic surveillance not authorized by FISA."


And guess what else?

The al_Haramain lawyers are pointing out dates when the wiretapping occurred when it was illegal (before March 10, 2004) and knowingly illegal and in violation of executive orders (after March 10, 2004):

Soon after the blocking of plaintiff Al-Haramain Oregon’s assets on February 19, 2004, plaintiff Belew spoke by telephone with Soliman al-Buthi (alleged to be one of Al-Haramain Oregon’s directors) on the following dates: March 10, 11 and 25, April 16, May 13, 22 and 26, and June 1, 2 and 10, 2004.

Go read emptywheel for more detailed, beautiful, insights into the meaning of this ruling....

Walker will read the documents on January 19th.  Hopefully he will come up with a few ideas to keep Obama's new Attorney General occupied....


Bonus Points:

So who besides Bush and Gonzales are sweating bullets???  Maybe this is why Feinstein and Rockefeller are a bit testy these days, since they signed off on the Illegal Program as members of the "Gang of Eight".  
No wonder they want Obama to appoint "old hats" who were in the chain of command (and thus also implicated) during the Bush Administration.....

Originally posted to drational on Tue Jan 06, 2009 at 08:35 AM PST.

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