MCLU Applauds Judge's Ruling That Warrantless NSA Surveillance Program Is Illegal

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PORTLAND – The same California judge who oversaw Maine citizens’ legal challenge to the National Security Agency (NSA) warrantless wiretapping program has now ruled that the spy program is illegal. The new court ruling means the government can be held accountable if it places Americans under surveillance without a court order, even though the Maine case was dismissed in 2009.

“While Mainers will never know to what extent we were spied upon by the Bush Administration, we can take comfort in knowing that even the President must follow the law,” said Shenna Bellows, Executive Director of the Maine Civil Liberties Union. “Government officials cannot listen to our telephone conversations without a court order.”

United States District Chief Judge Vaughn Walker ruled that surveillance of Al Haramain, a now-defunct Islamic charity in Oregon, and two of its lawyers violated the Foreign Intelligence Surveillance Act because the government did not seek court approval for the surveillance. Under FISA, government officials who violate the law may be subject to a $10,000 fine or even time in jail up to five years.

“Government officials who broke the law must now be held accountable,” said Bellows. “We cannot merely sweep the abuses of the last eight years under the rug; we must make sure that illegal spying on ordinary Americans never happens again.”

As in the Maine case and multiple ACLU cases challenges the National Security Agency surveillance program, extraordinary rendition and torture, President Obama’s Justice Department argued that the case should be dismissed as a threat to national security or “state secrets.” The judge ruled that state secrets could not be a way to shield the entire NSA surveillance program, which has been widely discussed by government officials in the media, from review by the courts.

“Under defendants’ theory, executive branch officials may treat FISA as optional and freely employ the SSP [state secrets privilege] to evade FISA, a statute enacted specifically to rein in and create a judicial check for executive-branch abuses of surveillance authority,” wrote Judge Vaughn Walker in his opinion, dated March 30.

At the Congressional level, the State Secrets Protection Act has been introduced in both the House of Representatives and the Senate. No member of the Maine Congressional delegation is yet a co-sponsor on either version of the bill, which would require additional court review of state secrets claims by the government.

“Both Bush and Obama have used “state secrets” as an excuse to block the courts from reviewing the constitutionality of torture and surveillance activities,” said Bellows. “Yet another judge has now spoken, and Congress should follow, to prevent any President from covering up illegal activity by calling it a “state secret.”

The ACLU is continuing to challenge broad NSA surveillance in the case of Amnesty v. Blair, which was filed on behalf of a broad coalition of attorneys and human rights, labor, legal and media organizations whose work requires them to engage in sensitive and sometimes privileged telephone and e-mail communications with individuals located outside the United States.