Exclusivity, Ay?

by dday

The main talking point that many in Congress, in particular Dianne Feinstein and Nancy Pelosi have used to claim the necessity of the FISA capitulation is that under this law, the FISA Court will be the “exclusive means” for electronic surveillance. Feinstein sent me a long letter telling me how, now that FISA is established as the exclusive means for spying on Americans, all the problems with Bush’s rogue programs would be solved. Now we have confirmation that, this was a complete bamboozlement.

A federal judge in California said Wednesday that the wiretapping law established by Congress was the “exclusive” means for the president to eavesdrop on Americans, and he rejected the government’s claim that the president’s constitutional authority as commander in chief trumped that law.

The judge, Vaughn R. Walker, the chief judge for the Northern District of California, made his findings in a ruling on a lawsuit brought by an Oregon charity. The group says it has evidence of an illegal wiretap used against it by the National Security Agency under the secret surveillance program established by President Bush after the terrorist attacks of Sept. 11, 2001 […]

But Judge Walker, who was appointed to the bench by former President George Bush, rejected those central claims in his 56-page ruling. He said the rules for surveillance were clearly established by Congress in 1978 under the Foreign Intelligence Surveillance Act, which requires the government to get a warrant from a secret court.

“Congress appears clearly to have intended to — and did — establish the exclusive means for foreign intelligence activities to be conducted,” the judge wrote. “Whatever power the executive may otherwise have had in this regard, FISA limits the power of the executive branch to conduct such activities and it limits the executive branch’s authority to assert the state secrets privilege in response to challenges to the legality of its foreign intelligence surveillance activities.”

Idiots, idiots, idiots. In the course of giving away massive new surveillance powers and immunity for lawbreakers, the so-called “chip” that they received in return was already in the law to begin with.

(By the way, this lawsuit is against the federal government, not the telecoms, so it would continue regardless of the outcome of Tuesday’s vote.)

UPDATE: More on the Obama backlash on his website in USA Today. It’s now the largest group on the site, with over 14,000 supporters.

UPDATE II: Glennzilla, as expected, has more on this, including this very salient point:

The Court reviewed the basic history of FISA: that the Church Committee in the mid-1970s had uncovered decades of spying abuses by our Government that were made possible — made inevitable — because the Government could spy without warrant requirements […] That was the process that led to the enactment of FISA 30 years ago. That is the bipartisan consensus that led both Republican and Democratic Presidents ever since to comply with it without complaint — until the current President broke the law in secret. And now, that’s the framework which the Congress is about to demolish, while protecting the very political officials and telecommunications companies which that law was designed to constrain.

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