Breaking: Judge Walker Grants Summary Judgement Finding Govt Liable Under FISA

[kpete]

Source: Firedoglake

Breaking: Judge Walker Grants Summary Judgement Finding Govt Liable Under FISA
By: emptywheel Wednesday March 31, 2010 11:02 am
Judge Walker Finds al-Haramain Has Standing

Judge Walker just issued the following ruling in the al-Haramain case:

*** The court now determines that plaintiffs have submitted, consistent with FRCP 56(d), sufficient non-classified evidence to establish standing on their FISA claim and to establish the absence of any genuine issue of material fact regarding their allegation of unlawful electronic surveillance; plaintiffs are therefore entitled to summary judgment in their favor on those matters. Defendants’ various legal arguments for dismissal and in opposition to plaintiffs’ summary judgment motion lack merit: defendants have failed to meet their burden to come forward, in response to plaintiffs’ prima facie case of electronic surveillance, with evidence that a FISA warrant was obtained, that plaintiffs were not surveilled or that the surveillance was otherwise lawful.

In the absence of a genuine issue of material fact whether plaintiffs were subjected to unlawful electronic surveillance within the purview of FISA and for the reasons fully set forth in the decision that follows, plaintiffs’ motion for summary judgment on the issue of defendants’ liability under FISA is GRANTED.***

I think Walker is basically saying, “well, gov’t, if you won’t give us any evidence to prove you legally wiretapped al-Haramain, then they win!”

I’m reading the rest of the order, will update shortly.


http://emptywheel.firedoglake.com/2010/03/31/breaking-judge-walker-finds-al-haramain-has-standing/

http://static1.firedoglake.com/28/files/2010/03/100331-al-Haramain-Order.pdf

Read more: http://emptywheel.firedoglake.com/2010/03/31/breaking-judge-walker-finds-al-haramain-has-standing/

[Solly Mack]

1. K&R

[librechik]

2. Halleluia!

with some reservations--I'm suspicious they will find some way to wiggle out or just ignore this decision. They are proven to be lawless and arrogant.

[Lebam in LA]

3. K&R

Off to the Greatest

[Xipe Totec]

4. K&R&BM! nt

[No Elephants]

5. REC! I googled the judge The first judge Walker that came up was

Bush's cousin, so I kept looking.

The Judge who decided this case is Vaughn Walker, an appointee of Poppy Bush who is thought to be gay and has made some cool decisions.

"In 1999 Walker rejected arguments from the parents of a San Leandro boy who claimed their religious rights were violated by pro-gay comments their son's teacher had made in the classroom. <8> In 2005, Walker sided with the city of Oakland against two employees who placed fliers promoting "natural family, marriage and family values." Walker wrote in an opinion that the city had "significant interests in restricting discriminatory speech about homosexuals. . . .(and has) a duty under state law to prevent workplace discrimination on the basis of sexual orientation." <8>

Judge Walker began hearing arguments for Perry v. Schwarzenegger—a federal constitutional challenge to California Proposition 8, a state referendum that overturned same-sex marriage in California—on 11 January 2010.<9>"

http://en.wikipedia.org/wiki/Vaughn_R._Walker

[L. Coyote]

6. This is a sweeping ruling placing a burden on the government to protect constitutional rights

a very important ruling for the People

"Defendants’ possession of the exclusive knowledge whether or not a FISA warrant was obtained, moreover, creates such grave equitable concerns that defendants must be deemed estopped from arguing that a warrant might have existed or, conversely, must be deemed to have admitted that no warrant existed. The court now determines, in light of all the aforementioned points and the procedural history of this case, that there is no genuine issue of material fact ..."

which, no doubt, Obama will appeal like a good Republican :rofl:

[aquart]

7. Which is where the burden should be.

Who is this judge and how did he sneak in?

[No Elephants]

30. See Reply # 5.

[kpete]

10. yep!!!

[boppers]

8. They tapped a domestic->domestic call, without a warrant.

This is done all the time, of course, but it's inadmissible, and usually swept under the rug, because Americans would likely be freaked out by the pervasiveness of such taps.

[musiclawyer]

9. 9th Citcuit won't overturn this. Only SCOTUS will

at least SCOTUS as it is constituted now

[JDPriestly]

11. Credit to whom credit is due. And I think it is due to Jon Eisenberg

and his team (not sure if he handled this District Court case to the end). Please give credit to the good lawyers who tirelessly defend our rights -- yours and mine.

Here are excerpts from an Jon Eisenberg's statements in an interview published in California Lawyer's 2009 SuperLawyer edition:

President Bush has freely admitted that his administration committed warrantless electronic surveillance, violating the Foreign Intelligence Surveillance Act of 1978. That's a felony, according to title 50, section 1809 of the United States Code. So President Bush is a felon. It's that simple.

Will he ever be brought to justice? Evidently not by a criminal prosecution, in which the Obama administration seems to have little interest. I'm doing my best to see that he's held to account under FISA's civil liability provision, section 1810 of title 50.

. . . .

During the Al-Haramain case you wrote a response to a government brief that you were not allowed to see. How does one go about doing that?

It was quite a challenge. It wasn't just that we had to speculate as to what might be in the secret DOJ brief; the conditions under which we wrote our secret response were onerous, approaching the bizarre: We were required to write the brief under guard in the U.S. Attorney's office in San Francisco; we were forbidden from preparing any notes for the brief-writing session; the DOJ retained sole possession of the brief we produced; and the DOJ has refused to allow us to review the brief since we wrote it. Litigation doesn't get any weirder than that.

. . . .

Lots more at
http://www.superlawyers.com/california-northern/article/QandA-with-Jon-B-Eisenberg/e098c6f7-cb78-482c-b0b2-07107af5f499.html

Please check out the interview. And remember, when you are thanking the troops and the local police that it's lawyers like Jon Eisenberg who guard your freedom. Thank them too.

On top of being a great, great lawyer, Jon Eisenberg is a good man as you will learn from the article. A man who has such loving things to say about his wife after a long marriage is a good man, sight unseen.

[wildbilln864]

12. A BIG K&R! nt

[harun]

13. Blam!

[kpete]

19. BIGGEST BLAM OF THE YEAR!

BUSHCO WIRETAPPING IS ILLEGAL!!!!!!!!!!!!!!!

[baldguy]

14. So, is someone going to prison? Who's going to prison?

Please tell me SOMEONE is going to prison!

[L. Coyote]

15. Well, President Bush is the felon the government would not rat out

so likely not.

[24601]

18. Not in this case, it's a civil suit. n/t

[L. Coyote]

16. Entry of Judgment may include names of every person eavesdropped, I hope

If FISA provides for a fine of $1000 per person, per day for each day of unlawful wiretaps, and they reveal thousands of wiretaps .... ????

plaintiffs now face a decision regarding the course of the remaining proceedings in this case.
They may either: (1) take steps to prosecute the remaining claim in the FAC or (2) they may voluntarily dismiss those claims in
order to take the steps necessary for the entry of judgment on the FISA claim. Plaintiffs shall advise the court, no later than Apr
16, 2010 and in the manner set forth below, of their election.”

Entry of Judgment:

1.) They should seek the facts about all government wiretapping done illegally!

[L. Coyote]

17. EFF: Court Rejects Government's Executive Power Claims and Rules....

Court Rejects Government's Executive Power Claims and Rules That Warrantless Wiretapping Violated Law
News Update by Kevin Bankston - http://www.eff.org/deeplinks/2010/03/court-rules-warrantless-wiretapping-illegal


Today, Chief Judge Vaughn Walker of the federal district court in San Francisco found that the government illegally wiretapped an Islamic charity's phone calls ......

The court's thorough decision is a strong rebuke to the government's argument that only the Executive Branch may determine if a case against the government can proceed in the courts, by invoking state secrets. The Obama Administration adopted this "state secrets privilege" theory from the Bush Administration's legal positions in this and other warrantless wiretapping cases.

The government's overreaching claim of unbridled executive power finally backfired today in the Al-Haramain case. As the court wrote in its order, "Under defendants' theory, 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 court, although noting the government's "impressive display of argumentative acrobatics," flatly rejected this theory. "Defendants could readily have availed themselves of the court's processes to present a single, case-dispositive item of evidence at one of a number of stages of this multi-year ligitation: a FISA warrant. They never did so." Therefore, "for purposes of this litigation, there was no such warrant for the electronic surveillance of any of plaintiffs," and the surveillance therefore violated FISA.

................

[usregimechange]

20. Walker, Vaughn R., Nominated by George H.W. Bush on September 7, 1989

http://www.fjc.gov/public/home.nsf/hisj

[Judi Lynn]

21. Wiretap of Islamic Group Ruled Illegal

Source: Associated Press

Wiretap of Islamic Group Ruled Illegal
By THE ASSOCIATED PRESS
Published: March 31, 2010
Filed at 2:44 p.m. ET

SAN FRANCISCO (AP) -- A federal judge ruled Wednesday that government investigators illegally wiretapped the phone conversations of an Islamic charity and two American lawyers without a search warrant.

U.S. District Court Judge Vaughn Walker said the plaintiffs have provided enough evidence to show ''they were subjected to warrantless electronic surveillance.''

At issue was a 2006 lawsuit challenging the Bush administration's so-called Terrorist Surveillance Program. The lawsuit was filed by the Ashland, Ore. branch of the Saudi-based Al-Haramain Islamic Foundation and two American lawyers Wendell Belew and Asim Ghafoor.

Belew and Ghafoor claimed their 2004 phone conversation with a foundation official, Soliman al-Buthi, was wiretapped soon after the Treasury Department had declared the charity branch a supporter of terrorism.



Read more: http://www.nytimes.com/aponline/2010/03/31/us/AP-US-Warrantless-Wiretaps.html?partner=rss&emc=rss

[Union Yes]

22. Like all other gross government lawlessness, it'll be swept under the rug. knr nt

[JoeyT]

23. So someone is going to jail over this, right?

I thought we were all about law and order again?

[24601]

25. No, this is civil court. It's a lawsuit instead of a prosecution. n/t

[JoeyT]

27. Thanks.

You're absolutely right and I should've known that. I dunno what the hell I was thinking. ;)

[L. Coyote]

24. EFF: Court Rejects Government's Executive Power Claims and Rules....

March 31st, 2010
Email This Digg This Post this to Reddit Share this blog post with delicious Share this on Facebook Tweet this blog post Dent this blog post
Court Rejects Government's Executive Power Claims and Rules That Warrantless Wiretapping Violated Law
News Update by Kevin Bankston - http://www.eff.org/deeplinks/2010/03/court-rules-warrantless-wiretapping-illegal


Today, Chief Judge Vaughn Walker of the federal district court in San Francisco found that the government illegally wiretapped an Islamic charity's phone calls in 2004, granting summary judgment for the plaintiffs in Al-Haramain Islamic Foundation v. Obama. The court held the government liable for violating the Foreign Intelligence Surveillance Act (FISA).

Today's order is the first decision since ACLU v. NSA to hold that warrantless wiretapping by the National Security Agency was illegal. The decision in ACLU v. NSA was overturned on other grounds in 2007, and the focus of the government's litigation strategy since then has been to avoid having any court rule on the merits of the issue.

The court's thorough decision is a strong rebuke to the government's argument that only the Executive Branch may determine if a case against the government can proceed in the courts, by invoking state secrets. The Obama Administration adopted this "state secrets privilege" theory from the Bush Administration's legal positions in this and other warrantless wiretapping cases.

The government's overreaching claim of unbridled executive power finally backfired today in the Al-Haramain case. As the court wrote in its order, "Under defendants' theory, 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."

.............

[Snazzy]

26. NYT: Federal Judge Finds N.S.A. Wiretapping Program Illegal

Federal Judge Finds N.S.A. Wiretapping Program Illegal
By CHARLIE SAVAGE and JAMES RISEN

WASHINGTON — A federal judge ruled Wednesday that the National Security Agency’s program of surveillance without warrants was illegal, rejecting the Obama administration’s effort to keep shrouded in secrecy one of the most disputed counterterrorism policies of former President George W. Bush.

In a 45-page opinion, Judge Vaughn R. Walker ruled that the government had violated a 1978 federal statute requiring court approval for domestic surveillance when it intercepted phone calls of Al Haramain, a now-defunct Islamic charity in Oregon, and of two lawyers representing it in 2004. Declaring that the plaintiffs had been “subjected to unlawful surveillance,” the judge said the government was liable to pay them damages.

The ruling delivered a blow to the Bush administration’s claims that its surveillance program, which Mr. Bush secretly authorized shortly after the terrorist attacks of Sept. 11, 2001, was lawful. Under the program, the National Security Agency monitored Americans’ international e-mail messages and phone calls without court approval, even though the Foreign Intelligence Surveillance Act, or FISA, required warrants.

The Justice Department said it was reviewing the decision and had made no decision about whether to appeal.

The ruling by Judge Walker, the chief judge of the Federal District Court in San Francisco, rejected the Justice Department’s claim — first asserted by the Bush administration and continued under President Obama — that the charity’s lawsuit should be dismissed without a ruling on the merits because allowing it to go forward could reveal state secrets.

The judge characterized that expansive use of the so-called state-secrets privilege as amounting to “unfettered executive-branch discretion” that had “obvious potential for governmental abuse and overreaching.”

...

http://www.nytimes.com/2010/04/01/us/01nsa.html?pagewanted=print

[midnight]

28. K&R Thank you to each and everyone of you who post information to help

those like me who are having a hard time with this issue....

[Supersedeas]

29. Lies and Deception during the Bush Years--and yet the Corp Television Media was/is so silent

about it....do you ever wonder why?