Skip to main content

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.

Your Email has been sent.
You must add at least one tag to this diary before publishing it.

Add keywords that describe this diary. Separate multiple keywords with commas.
Tagging tips - Search For Tags - Browse For Tags


More Tagging tips:

A tag is a way to search for this diary. If someone is searching for "Barack Obama," is this a diary they'd be trying to find?

Use a person's full name, without any title. Senator Obama may become President Obama, and Michelle Obama might run for office.

If your diary covers an election or elected official, use election tags, which are generally the state abbreviation followed by the office. CA-01 is the first district House seat. CA-Sen covers both senate races. NY-GOV covers the New York governor's race.

Tags do not compound: that is, "education reform" is a completely different tag from "education". A tag like "reform" alone is probably not meaningful.

Consider if one or more of these tags fits your diary: Civil Rights, Community, Congress, Culture, Economy, Education, Elections, Energy, Environment, Health Care, International, Labor, Law, Media, Meta, National Security, Science, Transportation, or White House. If your diary is specific to a state, consider adding the state (California, Texas, etc). Keep in mind, though, that there are many wonderful and important diaries that don't fit in any of these tags. Don't worry if yours doesn't.

You can add a private note to this diary when hotlisting it:
Are you sure you want to remove this diary from your hotlist?
Are you sure you want to remove your recommendation? You can only recommend a diary once, so you will not be able to re-recommend it afterwards.
Rescue this diary, and add a note:
Are you sure you want to remove this diary from Rescue?
Choose where to republish this diary. The diary will be added to the queue for that group. Publish it from the queue to make it appear.

You must be a member of a group to use this feature.

Add a quick update to your diary without changing the diary itself:
Are you sure you want to remove this diary?
(The diary will be removed from the site and returned to your drafts for further editing.)
(The diary will be removed.)
Are you sure you want to save these changes to the published diary?

Comment Preferences

pontificator, Kimberley, chase, Jeff in CA, Superskepticalman, buffalo soldier, Joe Bob, Alma, tmo, Marek, dwellscho, RedMeatDem, Paleo, Mogolori, oofer, hannah, Peace JD, Phoenix Woman, ogre, Rayne, Trendar, Hornito, Liberal Thinking, Margot, Geenius at Wrok, Guaunyu, Rolfyboy6, Powered Grace, whataboutbob, mattman, FLS, Bob Love, karlpk, tommurphy, rincewind, Shockwave, MsSpentyouth, simaramis, mlharges, Lipstick Liberal, OLinda, lysias, eeff, Mnemosyne, TX Unmuzzled, dkistner, ZAPatty, sobermom, SallyCat, amitxjoshi, mataliandy, givmeliberty, Robbien, hubcap, zeitshabba, Birdman, Dumbo, dpc, humbucker, Gustogirl, jackspace, opinionated, conchita, TracieLynn, sponson, mentaldebris, SamSinister, elveta, annrose, understandinglife, whenwego, OCD, djMikulec, peace voter, KMc, Xapulin, shock, PBnJ, Geonomist, fishwars, Scoopster, gayntom, mkfarkus, buckhorn okie, roses, pedrito, michelle, JuliaAnn, ovals49, Ignacio Magaloni, peraspera, murphsurf, nargel, CodeTalker, oceanview, corncam, MadEye, Nate Roberts, thingamabob, Cedwyn, Alna Dem, wader, Braindead, webweaver, kharma, bjornmmcc, psnyder, minorityusa, TexDem, SlowToAnger, Dallasdoc, Dr Colossus, jlynne, hereinmissouri, cosette, PaulVA, homo neurotic, betson08, Neighbor2, Timbuk3, lcrp, Anna Luc, Pohjola, walkshills, JayBat, ybruti, smartgo, WisVoter, schuylkill, tomjones, mosesfreeman, justmy2, Sybil Liberty, xxdr zombiexx, Sassy, dakrle, vivens fons, sawgrass727, Tirge Caps, dvx, luvmovies2000, nailbender, davidincleveland, chumley, ExStr8, tovan, mediaprisoner, bloomer 101, marina, radarlady, ZZZzzz, Tinfoil Hat, jrooth, bellevie, Ckntfld, Elise, m16eib, Five of Diamonds, CTPatriot, revbludge, democracy inaction, irate, PBen, sap, panicbean, frandor55, Simplify, DocGonzo, truong son traveler, Robin7459, dewtx, ChemBob, Brooke In Seattle, reflectionsv37, eru, lennysfo, mattwynn, owlbear1, cfk, Morrigan, Pam from Calif, Sun Tzu, GreyHawk, rlochow, Kayakbiker, Overseas, smkngman, Skid, lasky57, skrekk, Isara, Island Expat, fotyc, Aint Supposed to Die a Natural Death, wiscmass, EeDan, sodalis, Lisa Lockwood, dsteffen, benny05, bunsk, Cory Bantic, Rogneid, hcc in VA, tigerdog, Snud, Land of Enchantment, kathny, Jim R, drag0n, begone, lcork, skywriter, martini, occams hatchet, elliott, mspicata, LeftOverAmerica, Showman, Shirl In Idaho, hlee1169, danmac, Thundergod, tarheelblue, Patriot Daily News Clearinghouse, Keone Michaels, myboo, cybersaur, rmwarnick, BlueInARedState, andydoubtless, HoundDog, Yellow Canary, buhdydharma, KenBee, ccmask, IvanR, dangangry, carolita, fou, campdurning, SherriG, bren, triv33, TalkieToaster, tecampbell, MJ via Chicago, erratic, jasonbl, Glorfindel, gooderservice, gatorcog, nilocjin, imabluemerkin, real world chick, Terminus, Caoimhin Laochdha, plf515, el cid, ER Doc, bonesy, quantumspin, Turbonerd, 5x5, rage, CA Nana, Clive all hat no horse Rodeo, The Lighthouse Keeper, means are the ends, Dreaming of Better Days, chapel hill guy, MadMs, liberalpercy, Compostings, bstotts, Snarcalita, Picot verde, Temmoku, christomento, AllanTBG, sea note, markthshark, illusionmajik, NonnyO, BentLiberal, ammasdarling, subav8r, ccyd, bigchin, One Pissed Off Liberal, J Royce, pgm 01, YoyogiBear, Polacolor, Feeling Blue, asilomar, Ken in MN, donnamarie, Cronesense, Haningchadus14, Ann Galloway, dogdad, possum, leema, jetskreemr, EdSF, FishOutofWater, power2truth, Duccio, yowsta, HeartlandLiberal, greenchiledem, BehereBenow, Calvin Jones and the 13th Apostle, DWG, londubh, drchelo, davehouck, Seneca Doane, WiddieDawg, Kentucky Kid, jayden, stratocasterman, chicago jeff, vbdietz, mp, cyncynical, twistedflatcat, Junglered1, ultraslacker, Moderation, hopi13, Rumarhazzit, leonard145b, JML9999, Zydekos, Captain Nimrod, eyesoars, cacamp, Hens Teeth, B12love, Neon Mama, Terra Mystica, Empower Ink, Red no more, Winter Rabbit, JDWolverton, MKinTN, eparrot, rogerdaddy, Corporate Dog, sk4p, AnnieJo, condorcet, Hippokleides, TheFatLadySings, califdem, ScottyUrb, OleHippieChick, Youffraita, AshesAllFallDown, rugbymom, Thomas Twinnings, Mother of Zeus, Archangel, Its any one guess, jakebob, tofumagoo, geomoo, Jake Williams, DanK Is Back, MsWings, Jeff Y, rubine, saildude, mnguy66, mofembot, SmileySam, PMA, LaFajita, o the umanity, makettle, BCHS 1980, luckylizard, nokkonwud, nzanne, mary13L, DixieDishrag, BYw, red 83, dont think, magicsister, SpiffPeters, dmhlt 66, AndrewMC, rhutcheson, prodigalkat, lostboyjim, 1BQ, Bule Betawi, multilee, Rhysling, Ran3dy, cybrestrike, smellybeast, Mr Tentacle, MTmarilyn, Texanomaly, LA rupert, plumcrazie, eroded47095, jaf49, Michael James, eltee, CanyonWren, be the change you seek, weltshmertz, notrouble, Partisan Progressive, SciVo, Yalin, Matrix Dweller, zackamac, EquationDoc, mississippi boatrat, Daily Activist, glassbeadgame, Virginian in Spain, followyourbliss, MKSinSA, ZilV, MySobriquet, kevinpdx, deutschluz, aztronut, IngeniousGirl, synductive99, CityLightsLover, audiored, Lava20, 57andFemale, ArthurPoet, sherijr, jfromga, FundaMental Transformation, BA BarackUS, etara, deviant24x, ratmach, SweetMartha, Larsstephens, swvadem, Just Bob, bohemian darling, Lazar, BigVegan, choochmac, Carl Brutanananadilewski, ppl can fly, oohdoiloveyou, confitesprit, TidBits, Obamican08, Sand in Florida, the law of ducks, ChicagoPat, robertacker13, My mom is my hero, PurpleMyst, kjoftherock, fidellio, TheWesternSun, Ann T Bush, chrome327, Crabby Abbey, lostmypassword, sunny skies, ATFILLINOIS, Klick2con10ue, ctlrick, sullivanst, Marja E, SlackwareGrrl, JasperJohns, DerAmi, jawboneblues, Earth Ling, WattleBreakfast, Black Leather Rain, sluggahjells, Publius2008, washunate, jdacal, Urtica dioica gracilis, dclarke, DrTerwilliker, MsGrin, Hoosierdaddio, Floande, Murchadha, bottles, AMfromATL, slice, Odeomi13, Pakalolo, ladyducatnip, the dogs sockpuppet, oakland60, Olon, the national gadfly, Chuck Cook, tresgatos, Haf2Read, Cinnamon Rollover, incognita, athena47, KVoimakas, green plum, merrily1000, Bobby D, Euripides9, blue58, enhydra lutris, COkdub, Mumsty, Edgewater

Subscribe or Donate to support Daily Kos.

Click here for the mobile view of the site