# Warrantless surveillance program ruled illegal (secretly, several months ago) **URL:** \ **Category:** Great Debates\ **Created:** [August 2, 2007, 4:41pm UTC](https://boards.straightdope.com/t/warrantless-surveillance-program-ruled-illegal-secretly-several-months-ago/414144 "2007-08-02T16:41:31Z")\ **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:** [August 2, 2007, 4:41pm UTC](https://boards.straightdope.com/t/warrantless-surveillance-program-ruled-illegal-secretly-several-months-ago/414144/1 "2007-08-02T16:41:31Z")
Story [here:](http://www.msnbc.msn.com/id/20075751/site/newsweek) > [@](#): > > Aug. 1, 2007 - A secret ruling by a federal judge has restricted the U.S. intelligence community’s surveillance of suspected terrorists overseas and prompted the Bush administration’s current push for “emergency” legislation to expand its wiretapping powers, according to a leading congressman and a legal source who has been briefed on the matter. > > The order by a judge on the top-secret Foreign Intelligence Surveillance Act court has never been publicly acknowledged by administration officials—and the details of it (including the identity of the judge who wrote it) remain highly classified. But the judge, in an order several months ago, apparently concluded that the administration had overstepped its legal authorities in conducting warrantless eavesdropping even under the scaled-back surveillance program that the White House first agreed to permit the FISA court to review earlier this year, said one lawyer who has been briefed on the order but who asked not to be publicly identified because of its sensitivity. > > The first public reference to the order came obliquely this week from House Minority Leader John Boehner—one of a number of senior Republicans who have been leading the White House-backed campaign to persuade Congress to rush through an expanded eavesdropping measure before it leaves for August recess at the end of this week. 1. Should Congress approve the proposal? 2. Isn’t this whole thing getting way too Kafkaesque?! Precedent-setting court rulings aren’t supposed to be **secret!** How are lawyers supposed to research them?! How are other judges supposed to take them into account?! ---
**Author:** ![Giles](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/giles/32/60_2.png) [@Giles](https://boards.straightdope.com/u/Giles)\ **Post date:** [August 2, 2007, 4:57pm UTC](https://boards.straightdope.com/t/warrantless-surveillance-program-ruled-illegal-secretly-several-months-ago/414144/2 "2007-08-02T16:57:41Z")
1. And how can a person accused of a crime challenge evidence gathered illegally if they don’t know of this decision? Or are they just sent secretly to a secret prison and tortured secretly by secret agents? And does this all not matter if it contributes to the campaign to bring democracy to the resty of the world? ---
**Author:** ![SuaSponte](https://avatars.discourse-cdn.com/v4/letter/s/67e7ee/32.png) [@SuaSponte](https://boards.straightdope.com/u/SuaSponte)\ **Post date:** [August 3, 2007, 2:40pm UTC](https://boards.straightdope.com/t/warrantless-surveillance-program-ruled-illegal-secretly-several-months-ago/414144/3 "2007-08-03T14:40:40Z")
[QUOTE=BrainGlutton] 1. Should Congress approve the proposal? [/QUOTE] No. > [@](#): > > 1. Isn’t this whole thing getting way too Kafkaesque?! Precedent-setting court rulings aren’t supposed to be **secret!** How are lawyers supposed to research them?! How are other judges supposed to take them into account?! This isn’t as big a problem as it seems. The only court (ignoring the issue of appeals for the moment) that will consider such cases is the FISA court, the same court that issued this one. The FISA Court is aware of its own rulings. Sua ---
**Author:** ![BrainGlutton](https://avatars.discourse-cdn.com/v4/letter/b/82dd89/32.png) [@BrainGlutton](https://boards.straightdope.com/u/BrainGlutton)\ **Post date:** [August 3, 2007, 9:20pm UTC](https://boards.straightdope.com/t/warrantless-surveillance-program-ruled-illegal-secretly-several-months-ago/414144/4 "2007-08-03T21:20:43Z")
Bush [now says Congress must stay in session until it approves the new spying law.](http://seattletimes.nwsource.com/html/nationworld/2003820002_websurveillance03.html) ---
**Author:** ![BrainGlutton](https://avatars.discourse-cdn.com/v4/letter/b/82dd89/32.png) [@BrainGlutton](https://boards.straightdope.com/u/BrainGlutton)\ **Post date:** [August 3, 2007, 9:23pm UTC](https://boards.straightdope.com/t/warrantless-surveillance-program-ruled-illegal-secretly-several-months-ago/414144/5 "2007-08-03T21:23:59Z")
[QUOTE=SuaSponte] This isn’t as big a problem as it seems. The only court (ignoring the issue of appeals for the moment) that will consider such cases is the FISA court, the same court that issued this one. The FISA Court is aware of its own rulings. [/QUOTE] The FISA court is not the only court of competent jurisdiction WRT matters relating to the surveillance program. See [this](http://boards.straightdope.com/sdmb/showthread.php?t=429476) thread. I think the federal district court in Oregon ought to have access to the FISA court opnion before it rules. ---
**Author:** ![Hamlet](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/hamlet/32/2818_2.png) [@Hamlet](https://boards.straightdope.com/u/Hamlet)\ **Post date:** [August 3, 2007, 9:36pm UTC](https://boards.straightdope.com/t/warrantless-surveillance-program-ruled-illegal-secretly-several-months-ago/414144/6 "2007-08-03T21:36:18Z")
[QUOTE=BrainGlutton] 1. Should Congress approve the proposal? [/quote] No. While I’m happy that the Dem’s bill doesn’t go as far as this administration wants it to (not granting retroactive immunity to telecommunications, requiring actual oversight, and has a sunset provision), it still goes too far in softening the requirements for the potential wiretapping of US citizens. > [@BrainGlutton](#): > > 1. Isn’t this whole thing getting way too Kafkaesque?! Precedent-setting court rulings aren’t supposed to be **secret!** How are lawyers supposed to research them?! How are other judges supposed to take them into account?! As Sua said, the FISA court is the FISA court, and I still believe there is a necessity for a secret court to issue warrants on sensitive national security issues. But what chaps my hide is that this administration has apparently been breaking the law for years, lying about it, and it’s so secret that we don’t get to know about it. It’s much more Orwellian than Kafkaesque. ---
**Author:** ![BJMoose](https://avatars.discourse-cdn.com/v4/letter/b/5fc32e/32.png) [@BJMoose](https://boards.straightdope.com/u/BJMoose)\ **Post date:** [August 3, 2007, 10:06pm UTC](https://boards.straightdope.com/t/warrantless-surveillance-program-ruled-illegal-secretly-several-months-ago/414144/7 "2007-08-03T22:06:11Z")
[QUOTE=BrainGlutton] Bush [now says Congress must stay in session until it approves the new spying law.](http://seattletimes.nwsource.com/html/nationworld/2003820002_websurveillance03.html) [/QUOTE] And yesterday he said Congress needed to pass spending bills before going on vacation. Guess he thinks he can order around Congress.\* The man is flailing. Interestingly, that article you link to above says the administration is willing to have the new surveillance bill vetted by a court. Hmmm. You’re right - this whole thing is getting way too weird for words. (It’ll be interesting to see what Olbermann does with this tonight.) * * * - But then, maybe he can (cf. Truman’s famous “Turnip Session”). ---
**Author:** ![Stranger\_On\_A\_Train](https://avatars.discourse-cdn.com/v4/letter/s/13edae/32.png) [@Stranger\_On\_A\_Train](https://boards.straightdope.com/u/Stranger_On_A_Train)\ **Post date:** [August 3, 2007, 10:35pm UTC](https://boards.straightdope.com/t/warrantless-surveillance-program-ruled-illegal-secretly-several-months-ago/414144/8 "2007-08-03T22:35:18Z")
[QUOTE=BrainGlutton] 2. Isn’t this whole thing getting way too Kafkaesque?! Precedent-setting court rulings aren’t supposed to be **secret!** How are lawyers supposed to research them?! How are other judges supposed to take them into account?! [/QUOTE] I would call it more Heller-esque (“Catch-22 says they have a right to do anything that you can’t stop them from doing. And if you ask to see Catch-22, the law says they don’t have to show it to you. What law? Catch-22, of course.”) than Kafka, but I reserve the right to change my mind if Bush starts metamorophizing into a cockroach. Technical question: can the President actually force the houses to remain in session? I know that one house can block another from adjourning for more than three days while in session, but I don’t think the President has any authority to keep Congress in session. Stranger ---
**Author:** ![David\_Simmons](https://avatars.discourse-cdn.com/v4/letter/d/9de053/32.png) [@David\_Simmons](https://boards.straightdope.com/u/David_Simmons)\ **Post date:** [August 3, 2007, 10:51pm UTC](https://boards.straightdope.com/t/warrantless-surveillance-program-ruled-illegal-secretly-several-months-ago/414144/9 "2007-08-03T22:51:02Z")
[QUOTE=Stranger On A Train] Technical question: can the President actually force the houses to remain in session? I know that one house can block another from adjourning for more than three days while in session, but I don’t think the President has any authority to keep Congress in session. Stranger [/QUOTE] Yes. If they adjourn their regular session the president can immediately call them into a special session. All of the various types of congressional session are described, in excruciating detail, [here.](http://www.thegreenpapers.com/Hx/SessionsExplanation.html) It’s in Art. II, Sect. 3 ---
**Author:** ![Squink](https://avatars.discourse-cdn.com/v4/letter/s/b5e925/32.png) [@Squink](https://boards.straightdope.com/u/Squink)\ **Post date:** [August 4, 2007, 12:02am UTC](https://boards.straightdope.com/t/warrantless-surveillance-program-ruled-illegal-secretly-several-months-ago/414144/10 "2007-08-04T00:02:04Z")
[Ruling Limited Spying Efforts](http://www.washingtonpost.com/wp-dyn/content/article/2007/08/02/AR2007080202619_pf.html) > [@](#): > > House Minority Leader John A. Boehner (R-Ohio) disclosed elements of the court’s decision in remarks Tuesday to Fox News as he was promoting the administration-backed wiretapping legislation. Boehner has denied revealing classified information, but two government officials privy to the details confirmed that his remarks concerned classified information. Why isn’t Boehner in jail? ---
**Author:** ![BrainGlutton](https://avatars.discourse-cdn.com/v4/letter/b/82dd89/32.png) [@BrainGlutton](https://boards.straightdope.com/u/BrainGlutton)\ **Post date:** [August 4, 2007, 1:33am UTC](https://boards.straightdope.com/t/warrantless-surveillance-program-ruled-illegal-secretly-several-months-ago/414144/11 "2007-08-04T01:33:23Z")
[QUOTE=Squink] [Ruling Limited Spying Efforts](http://www.washingtonpost.com/wp-dyn/content/article/2007/08/02/AR2007080202619_pf.html) Why isn’t Boehner in jail? [/QUOTE] Because it would be cruel and unusual punishment to lock a man up with hardened criminals if his name is “Boehner.” ---
**Author:** ![BrainGlutton](https://avatars.discourse-cdn.com/v4/letter/b/82dd89/32.png) [@BrainGlutton](https://boards.straightdope.com/u/BrainGlutton)\ **Post date:** [August 4, 2007, 7:58pm UTC](https://boards.straightdope.com/t/warrantless-surveillance-program-ruled-illegal-secretly-several-months-ago/414144/12 "2007-08-04T19:58:40Z")
[The Senate has approved Bush’s version of the bill.](http://news.yahoo.com/s/ap/20070804/ap_on_go_pr_wh/terrorism_surveillance) The House, meanwhile, has rejected a Democratic version. ---
**Author:** ![David\_Simmons](https://avatars.discourse-cdn.com/v4/letter/d/9de053/32.png) [@David\_Simmons](https://boards.straightdope.com/u/David_Simmons)\ **Post date:** [August 4, 2007, 8:54pm UTC](https://boards.straightdope.com/t/warrantless-surveillance-program-ruled-illegal-secretly-several-months-ago/414144/13 "2007-08-04T20:54:13Z")
[QUOTE=BrainGlutton] [The Senate has approved Bush’s version of the bill.](http://news.yahoo.com/s/ap/20070804/ap_on_go_pr_wh/terrorism_surveillance) The House, meanwhile, has rejected a Democratic version. [/QUOTE] Yes, the Democrats will go along with a further erosion of civil rights because they are afraid not to. Of course the air traffic control system can teeter on the brink and, as recent events show, the infrastructure can collapse and nothing gets done. Highway failures and plane crashes are normal parts of life and are tolerated even when their frequency is unecessarily increased by inattention. Terrorist attacks are spectacular and demand instant action and 100% success in prevention methods. I’ve almost had as much of people as I can take. ---
**Author:** ![Squink](https://avatars.discourse-cdn.com/v4/letter/s/b5e925/32.png) [@Squink](https://boards.straightdope.com/u/Squink)\ **Post date:** [August 4, 2007, 9:47pm UTC](https://boards.straightdope.com/t/warrantless-surveillance-program-ruled-illegal-secretly-several-months-ago/414144/14 "2007-08-04T21:47:51Z")
[QUOTE=David Simmons] Yes, the Democrats will go along with a further erosion of civil rights because they are afraid not to. [/QUOTE] This is a little strong, when the majority of Democrats voted against the bill. [Senate Gives in on Wiretapping. 16 Dems Go Along.](http://www.dailykos.com/storyonly/2007/8/4/04858/29657) > [@](#): > > No Republicans voted against the bill. The following Democrats voted for it: Evan Bayh (Indiana); Tom Carper (Delaware); Bob Casey (Pennsylvania); Kent Conrad (North Dakota); Dianne Feinstein (California); Daniel Inouye (Hawai‘i); Amy Klobuchar (Minnesota); Nancy Mary Landrieu (Louisiana); Blanche Lincoln (Arkansas); Claire McCaskill (Missouri); Barbara Mikulski (Maryland); Bill Nelson (Florida); Ben Nelson (Nebraska); Mark Pryor (Arkansas); Ken Salazar (Colorado); Jim Webb (Virginia). > > Senators Joe Biden, Hillary Clinton, Christopher Dodd and Barack Obama all opposed the bill, as did 23 other Democrats and Bernie Sanders, the independent from Vermont. Joe Lieberman voted …well, you know how he voted. Given the unified support of Republicans for eroding our rights, this comment [from Talkleft](http://www.talkleft.com/story/2007/8/4/172816/9967) seems more appropriate to the outcome: > [@](#): > > These people don’t even bring a knife to a gun fight–they bring a carrot! ---
**Author:** ![BrainGlutton](https://avatars.discourse-cdn.com/v4/letter/b/82dd89/32.png) [@BrainGlutton](https://boards.straightdope.com/u/BrainGlutton)\ **Post date:** [August 5, 2007, 12:38am UTC](https://boards.straightdope.com/t/warrantless-surveillance-program-ruled-illegal-secretly-several-months-ago/414144/15 "2007-08-05T00:38:28Z")
[From the ACLU’s website:](http://www.aclu.org/safefree/nsaspying/31144res20070731.html) > [@](#): > > MYTH: The Foreign Intelligence Surveillance Act needs to be modernized. > FACT: The Foreign Intelligence Surveillance Act has been updated more than 50 times since being enacted in the '70s. It was updated as recently as last year. > > MYTH: We need warrants to wiretap foreigners abroad. > FACT: Current law allows foreign-to-foreign communications to be intercepted without a warrant. What this proposal is really about is the right to wiretap Americans - without a warrant - who are speaking with people overseas. > > MYTH: FISA has not kept up with new technology. > FACT: There is absolutely no new technology that evades FISA. Even the man responsible for prepping and filing all FISA applications, James Baker, head of the Justice Department’s Office of Intelligence Policy and Review, has said that, “There’s no type of collection that’s prohibited by the statute.” FISA was modernized by the Patriot Act, by Intelligence Reform legislation and by the re-authorization of the Patriot Act - indeed has been updated 50 times since it was enacted in 1978. > > MYTH: Congress knows the facts about the NSA warrantless spying program. > FACT: The Senate Judiciary Committee asked for the legal rationale for the program nine times before issuing subpoenas, and still hasn’t received an answer due to consistent stonewalling by the administration and the Department of Justice. The American public and their elected senators and representatives do not yet know the full extent of the warrantless wiretapping program and the extent to which FISA has been violated. So why would Congress grant additional power to this administration? > > MYTH: The telecom giants need immunity. > FACT: The administration has asked for a provision that would give immunity - from criminal prosecution as well as civil liability - for the telecom companies’ participation in any future warrantless wiretapping program. It is unprecedented to give sweeping immunity to an entire industry - especially before a full and public airing of the facts. ---
**Author:** ![David\_Simmons](https://avatars.discourse-cdn.com/v4/letter/d/9de053/32.png) [@David\_Simmons](https://boards.straightdope.com/u/David_Simmons)\ **Post date:** [August 5, 2007, 1:00am UTC](https://boards.straightdope.com/t/warrantless-surveillance-program-ruled-illegal-secretly-several-months-ago/414144/16 "2007-08-05T01:00:04Z")
[QUOTE=Squink] This is a little strong, when the majority of Democrats voted against the bill. [Senate Gives in on Wiretapping. 16 Dems Go Along.](http://www.dailykos.com/storyonly/2007/8/4/04858/29657) Given the unified support of Republicans for eroding our rights, this comment [from Talkleft](http://www.talkleft.com/story/2007/8/4/172816/9967) seems more appropriate to the outcome: [/QUOTE] Without the Democrats that voted for it it wouldn’t have passed. They are paragons of pusillanimity. ---
**Author:** ![Squink](https://avatars.discourse-cdn.com/v4/letter/s/b5e925/32.png) [@Squink](https://boards.straightdope.com/u/Squink)\ **Post date:** [August 5, 2007, 1:21am UTC](https://boards.straightdope.com/t/warrantless-surveillance-program-ruled-illegal-secretly-several-months-ago/414144/17 "2007-08-05T01:21:45Z")
[QUOTE=David Simmons] Without the Democrats that voted for it it wouldn’t have passed. They are paragons of pusillanimity. [/QUOTE] Yup, and the leadership should have turned the screws on them until they screamed uncle. ---
**Author:** ![David\_Simmons](https://avatars.discourse-cdn.com/v4/letter/d/9de053/32.png) [@David\_Simmons](https://boards.straightdope.com/u/David_Simmons)\ **Post date:** [August 5, 2007, 3:13am UTC](https://boards.straightdope.com/t/warrantless-surveillance-program-ruled-illegal-secretly-several-months-ago/414144/18 "2007-08-05T03:13:57Z")
[QUOTE=Squink] Yup, and the leadership should have turned the screws on them until they screamed uncle. [/QUOTE] I don’t know about the screws but if they are worth a damn as legislators a little education wouldn’t hurt. For example, while the Attorney General and everyone else in the administration was claiming that the USA Patriot Act wasn’t being abused the FBI’s Inspector General was listing abuses of the USA Patriot Act by FBI agents. The FISA court had ruled warrentless wiretaps unconstitutional so why renew and expand the program even for six months? As was the case with the Patriot Act this was rushed through at the last minute with no hearings and I suspect without anyone really knowing what the measure was about. And all so they could adjourn and get the hell out of town during the heat of August. I don’t know whether they are jerks or poltroons but they are somewhere in that vicinity. ---
**Author:** ![BrainGlutton](https://avatars.discourse-cdn.com/v4/letter/b/82dd89/32.png) [@BrainGlutton](https://boards.straightdope.com/u/BrainGlutton)\ **Post date:** [August 5, 2007, 6:51am UTC](https://boards.straightdope.com/t/warrantless-surveillance-program-ruled-illegal-secretly-several-months-ago/414144/19 "2007-08-05T06:51:28Z")
[QUOTE=David Simmons] The FISA court had ruled warrentless wiretaps unconstitutional so why renew and expand the program even for six months? [/QUOTE] 'Cause the Dems can’t afford to look “soft on terror.” No other reason. ---
**Author:** ![marshmallow](https://avatars.discourse-cdn.com/v4/letter/m/df705f/32.png) [@marshmallow](https://boards.straightdope.com/u/marshmallow)\ **Post date:** [August 5, 2007, 7:11am UTC](https://boards.straightdope.com/t/warrantless-surveillance-program-ruled-illegal-secretly-several-months-ago/414144/20 "2007-08-05T07:11:36Z")
That, or they just want to get on with their vacation. It seems like everyone gets a vacation – Bush, Congress, the Iraqi parliament…pretty much everyone except U.S. soldiers. [Next page](https://boards.straightdope.com/t/warrantless-surveillance-program-ruled-illegal-secretly-several-months-ago/414144.md?page=2)