Not So Fast, Immunity Granters
Marcy Wheeler has a series of posts taking a look at some intriguing events in the courtroom of Vaughn Walker, the judge who the Bush Administration - and many Democrats - thought would be forced to rubber-stamp the immunity provisions in last year's FISA law. The biggest issue with that blanket amnesty was that we would never know the extent of the lawbreaking and that there would subsequently be no accountability for those who authorized and directed it. Well, Judge Walker isn't going along with that.
I just finished reading Vaughn Walker's opinion explaining that the government will have to give him the document that--the lawyers for al Haramain claim--shows they were wiretapped without a warrant under Bush's illegal wiretap program, so he can determine whether it really does show what the lawyers claim it shows. If it does, you see, then someone will finally be able to sue Bush and his cronies for violating FISA.
The al Haramain case was one where the lawyers for the prosecution accidentally gave the defense a secret transcript of the defendants (an Islamic charity), proving they were eavesdropped on without a warrant. At the time, a court ruled that even with a hard document like that, the defendants in al Haramain couldn't show standing, and they couldn't enter it into evidence because it was classified. Now Walker is essentially vacating that decision. Threat Level has more.
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.
The case concerns lawyers Wendell Belew and Asim Ghafoor, whose case appears now the most likely to lead to a ruling on the legality of Bush's warrantless-wiretapping program. That program started after the Sept. 11 terror attacks and involved various initiatives that peered into Americans' phone and internet usage without court approval — a surveillance program ratified by Congress last year in legislation immunizing participating telecommunication companies.
The deadline for the government to hand over the incriminating document for Judge Walker is the day before the inauguration. And Marcy lays out the additional stakes.
Remember, Vaughn Walker has more than just this FISA mess on his plate. He is also--as we speak--deliberating on EFF's suit to prevent the awarding of retroactive immunity to the telecoms for their role in the illegal wiretap program. In fact, last we heard from him, Walker was wondering why he shouldn't wait until the new President comes in, to see whether that President's Attorney General is really so sure that the retroactive immunity for constitutional violations was as legal as Michael Mukasey claims it to have been. BushCo, of course, insisted that it's unheard of for a new Attorney General to reverse what the prior Administration's Attorney General has said [...]
Mukasey has made his representations on this issue--both about the constitutionality of retroactive immunity, and about the legality of the underlying program--based on his typical crap about Yoo's OLC opinions.
But he's also about to hand over a document to Walker that proves that there are aggrieved parties that can sue the government for violating FISA. He's about to hand over a document that will demonstrate clearly that Bush broke the law.
It's going to be a lot harder for Walker to find retroactive immunity legal (not least because he's contemplating the same issues of separation of powers that has him so riled up here), and it'll be a lot harder for Mukasey's successor to continue to affirm the program itself was legal, if Walker is in the process of affirming that Bush broke the law.
Once again, when Congress cannot be trusted to uphold the rule of law, the judicial branch takes steps to bail them out. However, as mcjoan notes:
...it's very possible that we could finally have some light shed on the warrantless wiretapping program in this case. That should not, however, preclude Congress from finally conducting its own investigation in the form of a reconstituted Church Commission and the Obama administration from cooperating fully with that investigation. There really isn't a way for Congress to recover everything it lost in its myriad capitulations to a lawless administration. But a bright light shined on the whole affair might just keep it from happening yet again.
It will be interesting to see what the Obama Administration does with this once they come into office. The legal team assembled over the last few weeks doesn't seem like they'd be willing to carry forward Mukasey et al.'s warped legal theories, and yet Obama himself voted for immunity. Should be another early test.