Archive | April, 2010

Petition for Rehearing in Rehberg v. Paulk, the Eleventh Circuit E-mail Case

Today a petition for rehearing was filed in Rehberg v. Paulk, the Eleventh Circuit decision I blogged about at length that takes a very minimalist view of e-mail privacy. I am happy to report that my friends at the Electronic Frontier Foundation have joined in and co-authored the petition for rehearing. I very much hope the Eleventh Circuit grants rehearing and revisits this decision, for the reasons explained in my earlier post. Rehearing is always an uphill battle, but I remain hopeful with this case: I suspect this is one of those cases in which the panel just didn’t realize the significance of the question or the implications of its opinion. [...]

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What Al-Haramain Says, And What It Doesn’t Say

The New York Times reports on Judge Walker’s new decision in Al-Haramain Islamic Foundation v. Obama with the following opening:

A federal judge ruled Wednesday that the National Security Agency’s program of surveillance without warrants was illegal, rejecting the Obama administration’s effort to keep shrouded in secrecy one of the most disputed counterterrorism policies of former President George W. Bush.

In a 45-page opinion, Judge Vaughn R. Walker ruled that the government had violated a 1978 federal statute requiring court approval for domestic surveillance when it intercepted phone calls of Al Haramain, a now-defunct Islamic charity in Oregon, and of two lawyers representing it in 2004. Declaring that the plaintiffs had been “subjected to unlawful surveillance,” the judge said the government was liable to pay them damages.

The ruling delivered a blow to the Bush administration’s claims that its surveillance program, which Mr. Bush secretly authorized shortly after the terrorist attacks of Sept. 11, 2001, was lawful. Under the program, the National Security Agency monitored Americans’ international e-mail messages and phone calls without court approval, even though the Foreign Intelligence Surveillance Act, or FISA, required warrants.

I’ve seen some similar reports online, so I thought I would register a somewhat technical objection to this characterization of the opinion. The Obama Administration wasn’t arguing that the surveillance program was lawful. As a result, the decision doesn’t rule that the program was unlawful. Rather, the Obama Administration was just arguing that Judge Walker couldn’t reach the merits of the case because of the state secrets privilege. After Judge Walker rejected the state secrets privilege claim, the case was over: DOJ not having argued that warrantless monitoring was lawful, Walker had no choice but to grant relief to the plaintiffs on their claim.

As I said, this is sort of a technical [...]

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