# Judge rules FISA is "exclusive" means for wiretapping -- POTUS can't use CinC power **URL:** \ **Category:** Great Debates\ **Created:** [July 3, 2008, 4:17pm UTC](https://boards.straightdope.com/t/judge-rules-fisa-is-exclusive-means-for-wiretapping-potus-cant-use-cinc-power/455200 "2008-07-03T16:17:02Z")\ **Posts on this page:** 20\ **Page:** 1
**Author:** ![BrainGlutton](https://avatars.discourse-cdn.com/v4/letter/b/82dd89/32.png) [@BrainGlutton](https://boards.straightdope.com/u/BrainGlutton)\ **Post date:** [July 3, 2008, 4:17pm UTC](https://boards.straightdope.com/t/judge-rules-fisa-is-exclusive-means-for-wiretapping-potus-cant-use-cinc-power/455200/1 "2008-07-03T16:17:02Z")
Followup on [this](http://boards.straightdope.com/sdmb/showthread.php?t=429476) thread, but it’s a year old and I didn’t want to bump it. See also [this](http://boards.straightdope.com/sdmb/showthread.php?t=431262) thread. Story [here:](http://www.nytimes.com/2008/07/03/washington/03fisa.html?_r=2&ref=us&oref=slogin&oref=slogin) > [@](#): > > WASHINGTON — 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. > > The Justice Department has tried for more than two years to kill the lawsuit, saying any surveillance of the charity or other entities was a “state secret” and citing the president’s constitutional power as commander in chief to order wiretaps without a warrant from a court under the agency’s program. > > 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.” > > Judge Walker’s voice carries extra weight because all the lawsuits involving telephone companies that took part in the N.S.A. program have been consolidated and are being heard in his court. This, recall, is the case where the charity, the now-defunct U.S. branch of the [al-Haramain Islamic Foundation](http://en.wikipedia.org/wiki/Al_Haramain) (accused of being a front for al-Qaeda), established its standing to sue because the Justice Department had accidentally given it a copy of the classified document showing the surveillance – which evidence the government tried to have suppressed as a state secret. Up to now the legality of the NSA wiretapping could not be ruled upon by any court, because, the surveillance being secret, no party or organization could actually make a prima facie case that it had been surveilled at all, therefore none could establish standing to sue. Issues for debate: 1. Is this a sound decision? 2. It’s only a District Court (trial court of first impression) decision, and with this much invested the Justice Department is bound to appeal it; will it be sustained or reversed on appeal? 3. Practical and political ramifications? ---
**Author:** ![BrainGlutton](https://avatars.discourse-cdn.com/v4/letter/b/82dd89/32.png) [@BrainGlutton](https://boards.straightdope.com/u/BrainGlutton)\ **Post date:** [July 3, 2008, 4:56pm UTC](https://boards.straightdope.com/t/judge-rules-fisa-is-exclusive-means-for-wiretapping-potus-cant-use-cinc-power/455200/2 "2008-07-03T16:56:48Z")
N.B.: In the same decision, [Judge Walker threw out the classified document al-Haramain sought to use as evidence and gave the plaintiffs 30 days to re-file on new evidence.](http://www.washingtonpost.com/wp-dyn/content/article/2008/07/03/AR2008070300395.html) If they can come up with none, the case might never go up on appeal. ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [July 3, 2008, 5:06pm UTC](https://boards.straightdope.com/t/judge-rules-fisa-is-exclusive-means-for-wiretapping-potus-cant-use-cinc-power/455200/3 "2008-07-03T17:06:59Z")
[QUOTE=BrainGlutton] N.B.: In the same decision, [Judge Walker threw out the classified document al-Haramain sought to use as evidence and gave the plaintiffs 30 days to re-file on new evidence.](http://www.washingtonpost.com/wp-dyn/content/article/2008/07/03/AR2008070300395.html) If they can come up with none, the case might never go up on appeal. [/QUOTE] No precedential value, and a judgment that will be reviewed _de novo_. This means very little, and it will mean zero if the plaintiffs have no admissible evidence. ---
**Author:** ![BrainGlutton](https://avatars.discourse-cdn.com/v4/letter/b/82dd89/32.png) [@BrainGlutton](https://boards.straightdope.com/u/BrainGlutton)\ **Post date:** [July 3, 2008, 5:50pm UTC](https://boards.straightdope.com/t/judge-rules-fisa-is-exclusive-means-for-wiretapping-potus-cant-use-cinc-power/455200/4 "2008-07-03T17:50:13Z")
[QUOTE=Bricker] No precedential value, and a judgment that will be reviewed _de novo_. This means very little, and it will mean zero if the plaintiffs have no admissible evidence. [/QUOTE] Waitaminnit, now – trial-court rulings on questions of law **do** have precedential effect; they’re just rarely cited for such because they’re rarely published. But this one is different. ---
**Author:** ![Oy](https://avatars.discourse-cdn.com/v4/letter/o/bc8723/32.png) [@Oy](https://boards.straightdope.com/u/Oy)\ **Post date:** [July 5, 2008, 1:13am UTC](https://boards.straightdope.com/t/judge-rules-fisa-is-exclusive-means-for-wiretapping-potus-cant-use-cinc-power/455200/5 "2008-07-05T01:13:49Z")
[QUOTE=BrainGlutton] N.B.: In the same decision, [Judge Walker threw out the classified document al-Haramain sought to use as evidence and gave the plaintiffs 30 days to re-file on new evidence.](http://www.washingtonpost.com/wp-dyn/content/article/2008/07/03/AR2008070300395.html) [/QUOTE] Anyone have any idea why? They could easily redact out all other names on the copy of the log presented, so I don’t see how it could endanger security. Also, **Bricker** , why do you believe the case will be reviewed \*de novo \* and could you explain exactly what that means to those of us who are not lawyers and haven’t encountered the term before? I mean, going back to my high school Latin, it looks like **of** or **from new** , but I don’t quite know how that applies here. ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [July 5, 2008, 3:30am UTC](https://boards.straightdope.com/t/judge-rules-fisa-is-exclusive-means-for-wiretapping-potus-cant-use-cinc-power/455200/6 "2008-07-05T03:30:17Z")
[QUOTE=BrainGlutton] Waitaminnit, now – trial-court rulings on questions of law **do** have precedential effect; they’re just rarely cited for such because they’re rarely published. But this one is different. [/QUOTE] Other than establishing the law of the case, a federal district court ruling has no precedential value at all. (Persuasive value? Sure, maybe. But it’s not precedent.) If you disagree, you’re going to need to provide a cite. Now, it’s true that U.S. Circuit Courts have dodged setting precedents by use of unpublished opinions. But not trial courts. ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [July 5, 2008, 3:34am UTC](https://boards.straightdope.com/t/judge-rules-fisa-is-exclusive-means-for-wiretapping-potus-cant-use-cinc-power/455200/7 "2008-07-05T03:34:24Z")
[QUOTE=Oy!] Also, **Bricker** , why do you believe the case will be reviewed \*de novo \* and could you explain exactly what that means to those of us who are not lawyers and haven’t encountered the term before? I mean, going back to my high school Latin, it looks like **of** or **from new** , but I don’t quite know how that applies here. [/QUOTE] Sure. An appellate court has several different “modes” of review. When a trial court has made a finding of fact, the appellate court is pretty much bound to accept it. The only way a finding of fact may be disturbed on appeal is if the appellate court determines that it’s without any support in the record. But a conclusion of law is different. When a trial court reaches a conclusion about what the law is, the appellate court has no particular deference for that conclusion. They don’t give it any weight at all; they consider the question afresh, anew, from the beginning – “_de novo_”. ---
**Author:** ![Oy](https://avatars.discourse-cdn.com/v4/letter/o/bc8723/32.png) [@Oy](https://boards.straightdope.com/u/Oy)\ **Post date:** [July 5, 2008, 4:19am UTC](https://boards.straightdope.com/t/judge-rules-fisa-is-exclusive-means-for-wiretapping-potus-cant-use-cinc-power/455200/8 "2008-07-05T04:19:43Z")
OK, let’s see if I have this straight by giving a concrete example. Someone commits a murder that is unquestionably a murder and pre-planned at that. THe appelate court is pretty much bound to accept it unless there was some kind of violation in the original trial. But someone else kills someone, but you can’t tell if it was completely an accident, self-defense, or murder, so you don’t know if the law applies or not. That is subject to \*de nova \* review? ---
**Author:** ![BrainGlutton](https://avatars.discourse-cdn.com/v4/letter/b/82dd89/32.png) [@BrainGlutton](https://boards.straightdope.com/u/BrainGlutton)\ **Post date:** [July 5, 2008, 6:22am UTC](https://boards.straightdope.com/t/judge-rules-fisa-is-exclusive-means-for-wiretapping-potus-cant-use-cinc-power/455200/9 "2008-07-05T06:22:35Z")
[QUOTE=Bricker] Other than establishing the law of the case, a federal district court ruling has no precedential value at all. (Persuasive value? Sure, maybe. But it’s not precedent.) If you disagree, you’re going to need to provide a cite. [/QUOTE] Cite? At the **state** level I have used (rare) published trial-court opinions as precedential authority and it has never been disallowed on level-of-court grounds. Why would it be any different at the federal level? ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [July 5, 2008, 7:03pm UTC](https://boards.straightdope.com/t/judge-rules-fisa-is-exclusive-means-for-wiretapping-potus-cant-use-cinc-power/455200/10 "2008-07-05T19:03:30Z")
[QUOTE=BrainGlutton] Cite? At the **state** level I have used (rare) published trial-court opinions as precedential authority and it has never been disallowed on level-of-court grounds. Why would it be any different at the federal level? [/QUOTE] I have no idea what state you’re talking about. In Virginia, Va. Code § 8.01-670.1 (among others) specifies that controlling precedent in the Commonwealth arises only from decisions of the Virginia Supreme Court or the Court of Appeals. The trial courts in Virginia cannot create controlling precedent. (In Virginia, the General District Court is the trial court for misdemeanors, with a de novo right of appeal to the Circuit Court. The Circuit Court is the first-instance trial court for felonies). Neither sets precedent (again, apart from the law of the case, which is manifestly not what we’re discussing here). At the federal level, the district court’s opinions are reported in the F. Supp. volumes, but they are not controlling precedent. Controlling precedent in the federal district court comes from the Federal Circuit Court of Appeals to which the district belongs. See, e.g., “The Power of Congress over the Rules of Precedent,” John Harrison, Duke Law Journal, Vol. 50, No. 2 (Nov., 2000). If you cited a federal district court opinion as controlling, and the judge let you do it, and your opposition failed to object, I can only assume you were in the company of some woefully uninformed practioners. Again, if you have a cite to the contrary, let’s see it. ---
**Author:** ![Little\_Nemo](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/little_nemo/32/3120_2.png) [@Little\_Nemo](https://boards.straightdope.com/u/Little_Nemo)\ **Post date:** [July 6, 2008, 2:13am UTC](https://boards.straightdope.com/t/judge-rules-fisa-is-exclusive-means-for-wiretapping-potus-cant-use-cinc-power/455200/11 "2008-07-06T02:13:15Z")
I’m glad to see that the courts are finally addressing the issue of Presidential abuse of the Constitution. But it’s so long overdue, I’m cynical. Is this just a recognition that the next President won’t be a Republican so it’s time to start taking back his power? ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [July 6, 2008, 9:23pm UTC](https://boards.straightdope.com/t/judge-rules-fisa-is-exclusive-means-for-wiretapping-potus-cant-use-cinc-power/455200/12 "2008-07-06T21:23:27Z")
[QUOTE=Bricker] Again, if you have a cite to the contrary, let’s see it. [/QUOTE] Just checking in on this request. ---
**Author:** ![BrainGlutton](https://avatars.discourse-cdn.com/v4/letter/b/82dd89/32.png) [@BrainGlutton](https://boards.straightdope.com/u/BrainGlutton)\ **Post date:** [July 6, 2008, 9:31pm UTC](https://boards.straightdope.com/t/judge-rules-fisa-is-exclusive-means-for-wiretapping-potus-cant-use-cinc-power/455200/13 "2008-07-06T21:31:58Z")
[QUOTE=Bricker] Just checking in on this request. [/QUOTE] All I can tell you is, I’ve used published trial-court opinions in Florida without getting shot down, at least, not because they are only trial-court opinions. I don’t know about federal practice. But giving precedential effect to trial-court opinions seems more in keeping with the common-law tradition, absent expressly contrary leglislation like you have in your state. ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [July 7, 2008, 12:28am UTC](https://boards.straightdope.com/t/judge-rules-fisa-is-exclusive-means-for-wiretapping-potus-cant-use-cinc-power/455200/14 "2008-07-07T00:28:08Z")
[QUOTE=BrainGlutton] All I can tell you is, I’ve used published trial-court opinions in Florida without getting shot down, at least, not because they are only trial-court opinions. I don’t know about federal practice. But giving precedential effect to trial-court opinions seems more in keeping with the common-law tradition, absent expressly contrary leglislation like you have in your state. [/QUOTE] Well, again, I don’t know what the rule is in Florida. But in both Virginia and the federal system, controlling precedent comes from the appellate, not the trial, level. Cites above. ---
**Author:** ![elucidator](https://avatars.discourse-cdn.com/v4/letter/e/8edcca/32.png) [@elucidator](https://boards.straightdope.com/u/elucidator)\ **Post date:** [July 7, 2008, 1:04am UTC](https://boards.straightdope.com/t/judge-rules-fisa-is-exclusive-means-for-wiretapping-potus-cant-use-cinc-power/455200/15 "2008-07-07T01:04:03Z")
Boy, sure is exciting watching lawyers argue. If I kept on like that for more than about four hours, I might need a doctor. ---
**Author:** ![E-Sabbath](https://avatars.discourse-cdn.com/v4/letter/e/e19adc/32.png) [@E-Sabbath](https://boards.straightdope.com/u/E-Sabbath)\ **Post date:** [July 7, 2008, 7:08am UTC](https://boards.straightdope.com/t/judge-rules-fisa-is-exclusive-means-for-wiretapping-potus-cant-use-cinc-power/455200/16 "2008-07-07T07:08:25Z")
… see, I’m interested in this, Luce. Maybe it’s the D&D gamer in me. ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [July 8, 2008, 5:14pm UTC](https://boards.straightdope.com/t/judge-rules-fisa-is-exclusive-means-for-wiretapping-potus-cant-use-cinc-power/455200/17 "2008-07-08T17:14:32Z")
[QUOTE=BrainGlutton] All I can tell you is, I’ve used published trial-court opinions in Florida without getting shot down, at least, not because they are only trial-court opinions. I don’t know about federal practice. But giving precedential effect to trial-court opinions seems more in keeping with the common-law tradition, absent expressly contrary leglislation like you have in your state. [/QUOTE] I’ve been reading a few Florida cases here and there in my spare time. I can’t find a single reported case in the Florida Supreme Court or in any of Florida’s five appellate districts in which a trial court opinion was referred to as having precedential weight, even at the trial level. I also cannot find anything in any local rules that would support this. Of course, not being licensed in Florida, it’s possible I don’t know where to look or how to correctly interpret what I’m seeing. But based on this research, I’m going to now ask you for a cite, other than your own claimed experience, in which a Florida trial court’s decision was used as precedent in a subsequent case. (Obviously, this excludes any application of the law of the case, any collateral estoppel or res judicata claims, or the like). ---
**Author:** ![wevets](https://avatars.discourse-cdn.com/v4/letter/w/e9a140/32.png) [@wevets](https://boards.straightdope.com/u/wevets)\ **Post date:** [July 10, 2008, 1:44am UTC](https://boards.straightdope.com/t/judge-rules-fisa-is-exclusive-means-for-wiretapping-potus-cant-use-cinc-power/455200/18 "2008-07-10T01:44:14Z")
Pardon my ignorance on the law, but if FISA _doesn’t_ govern the President’s domestic wiretapping powers, wouldn’t the alternative be that no law governs that power? ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [July 10, 2008, 2:15am UTC](https://boards.straightdope.com/t/judge-rules-fisa-is-exclusive-means-for-wiretapping-potus-cant-use-cinc-power/455200/19 "2008-07-10T02:15:54Z")
[QUOTE=Oy!] OK, let’s see if I have this straight by giving a concrete example. Someone commits a murder that is unquestionably a murder and pre-planned at that. THe appelate court is pretty much bound to accept it unless there was some kind of violation in the original trial. But someone else kills someone, but you can’t tell if it was completely an accident, self-defense, or murder, so you don’t know if the law applies or not. That is subject to \*de nova \* review? [/QUOTE] Eh… sorta. Maybe a different example will help. Jack is accused of planning to kill his neighbor Steve. He knows Steve mows the grass every Saturday morning, so he sets up his sniper rifle in his bedroom window, and when Steve’s out mowing, he shoots. But the bullet misses Steve and travels into the next yard, where it kills George. As a matter of law, what’s the crime? The defense says, “Hey, it’s not premeditated murder. Jack planned to kill Steve. If he had, sure, it would be premeditated. But Jack killed George completely by accident. No premeditation – no intent, even! It’s an accidental death!” The prosecution syas, “No. The rule is that the intent, and the premeditation, that Jack had for killing Steve gets _transferred_ to George’s death.” The jury finds Steve guilty. The trial court agrees with the prosecution’s theory, and enters a verdict of guilty for premeditated murder. Now, the appellate court must accept that Jack planned to kill Steve, that he shot the gun, and that George died as a result. Those are facts, and the jury, as the finder of fact, can’t be questioned on those findings. (Assuming there’s support in the record for the finding. If the only evidence the jury heard was a psychic from Germany saying she dreamed the whole murder scene, then that’s not enough evidence for a reasonable jury to find those facts to be true.) But assuming there’s sufficient evidence in the record, the jury’s finding of fact is unquestioned on appeal. But the conclusion of law – that the intent for one killing is “transferred” to another death is something the appellate court will review without particularly caring what the trial court decided. They will take the facts and figure of what the law says about them, independently of the trial court’s decision – _de novo_. ---
**Author:** ![Oy](https://avatars.discourse-cdn.com/v4/letter/o/bc8723/32.png) [@Oy](https://boards.straightdope.com/u/Oy)\ **Post date:** [July 10, 2008, 2:56am UTC](https://boards.straightdope.com/t/judge-rules-fisa-is-exclusive-means-for-wiretapping-potus-cant-use-cinc-power/455200/20 "2008-07-10T02:56:37Z")
Wouldn’t the Lindburgh law cover that situation? Any death that is the result of a felony’s (attempted murder) being commited is 1st degree murder? Or is that a myth from my childhood? I’m not certain of your last sentence, so let me confirm: do you mean that the appellate court would review the evidence from the start, rather than looking at any aspect of the first trial? Just want to make sure. [Next page](https://boards.straightdope.com/t/judge-rules-fisa-is-exclusive-means-for-wiretapping-potus-cant-use-cinc-power/455200.md?page=2)