Exclusivity Argument Goes Up In Flames

The main talking point that, 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. The bamboozlement here is that FISA, a federal statute, never was the exclusive means before. Now we have confirmation of this, from a federal judge in California no less.

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. Remember that exclusivity was DiFi's amendment, and Pelosi said it was "the most important" aspect of any new law.

(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 14,000 supporters.