{"id":2223,"date":"2008-07-05T10:27:44","date_gmt":"2008-07-05T11:51:06","guid":{"rendered":""},"modified":"-0001-11-30T00:00:00","modified_gmt":"2008-07-05T10:26:30","slug":"en-US","status":"publish","type":"post","link":"http:\/\/fourthamendment.com\/?p=2223","title":{"rendered":"N.D. Cal.: FISA is the exclusive means for spying on Americans; President has no plenary authority"},"content":{"rendered":"

The N.D. Cal. held Wednesday (see NYTimes.com<\/a>) that FISA is the exclusive means for wiretapping Americans, and the President has no plenary authority over spying on Americans in the name of national security. In Re: National Security Agency Telecommunications Records Litigation (Al-Haramain Islamic Foundation, Inc v. Bush)<\/a>, MDL Docket No 06-1791 (N.D. Cal. July 2, 2008):<\/p>\n

For the reasons stated herein, the court has determined that: (1) FISA preempts the state secrets privilege in connection with electronic surveillance for intelligence purposes and would appear to displace the state secrets privilege for purposes of plaintiffs\u2019 claims; and (2) FISA nonetheless does not appear to provide plaintiffs a viable remedy unless they can show that they are \u201caggrieved persons\u201d within the meaning of FISA. The lack of precedents interpreting the remedial provisions of FISA, the failure of the parties to consider the import of FISA preemption and the undeveloped factual record in this case warrant allowing plaintiffs to attempt to make that showing and, therefore, support dismissal of the FISA claim with leave to amend.<\/p>\n

. . .<\/p>\n

In the case of FISA, Congress attempted not only to put a stop to warrantless wiretapping by the executive branch but also to establish checks and balances involving other branches of government in anticipation of efforts by future administrations to undertake warrantless surveillance in some other manner:<\/p>\n

In the past several years, abuses of domestic national security surveillances have been disclosed. This evidence alone should demonstrate the inappropriateness of relying solely on executive branch discretion to safeguard civil liberties. This committee is well aware of the substantial safeguards respecting foreign intelligence electronic surveillance currently embodied in classified Attorney General procedures, but this committee is also aware that over the past thirty years there have been significant changes in internal executive branch procedures, and there is ample precedent for later administrations or even the same administration loosening previous standards.<\/p><\/blockquote>\n

H R Rep No 95-1283(I) at 21. Given the possibility that the executive branch might again engage in warrantless surveillance and then assert national security secrecy in order to mask its conduct, Congress intended for the executive branch to relinquish its near total control over whether the fact of unlawful surveillance could be protected as a secret. <\/p>\n

Reynolds<\/em> itself, holding that the state secrets privilege is part of the federal common law, leaves little room for defendants\u2019 argument that the state secrets privilege is actually rooted in the constitution. Reynolds stated that the state secrets privilege was \u201cwell-established in the law of evidence.\u201d 345 US at 6-7. At the time, Congress had not yet approved the Federal Rules of Evidence, and therefore the only \u201claw of evidence\u201d to apply in federal court was an amalgam of common law, local practice a statutory provisions with indefinite contours. John Henry Wigmore (revised by Peter Tillers), I Evidence \u00a76.1 at 384-85 (Little, Brown & Co 1983). The Court declined to address the constitutional question whether Congress could limit executive branch authority to withhold sensitive documents, but merely interpreted and applied federal common law. See Reynolds<\/em>, 345 US at 6 & n9. <\/p>\n

Defendants\u2019 attempt to establish a strict dichotomy between federal common law and constitutional interpretation is, moreover, misconceived because all rules of federal common law have some grounding in the Constitution. \u201cFederal common law implements the federal Constitution and statutes, and is conditioned by them. Within these limits, federal courts are free to apply the traditional common-law technique of decision and to draw upon all the sources of the common law in cases such as the present.\u201d D\u2019Oench, Duhme & Co v FDIC<\/em>, 315 US 447, 472 (1942) (Jackson concurring). …<\/p>\n

In the specific context of the state secrets privilege, it would be unremarkable for the privilege to have a constitutional \u201ccore\u201d or constitutional \u201covertones.\u201d See Robert M Chesney, State Secrets and the Limits of National Security Litigation<\/em><\/a>, 75 George Wash L Rev 1249, 1309-10 (2007). Article II might be nothing more than the source of federal policy that courts look to when applying the common law state secrets privilege. But constitutionally inspired deference to the executive branch is not the same as constitutional law. <\/p><\/blockquote>\n","protected":false},"excerpt":{"rendered":"

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