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Speaking of FISA "reform," now more than ever we need to step up and pressure our legislators to halt their apparently unending quest for needless action. Because just one day short of our national celebration of liberty and freedom, a Republican appointed judge declared "the so-called "state secrets" privilege can't shield wiretapping." Wired explains:

Just days before the Senate will convene to give a final blessing to President Bush's secret, warrantless wiretapping program, a federal court judge ruled that his legal justification for the surveillance has no legal merit.

He's the same judge Congress is trying to save the nation's telecoms, such as AT&T, Verizon and Sprint, from having to face in court.

Late Wednesday, U.S. District Chief Judge Vaughn Walker issued a ruling (.pdf) in a case against the government alleging illegal spying, finding that in 1978 Congress had clearly set out the rules for wiretapping inside the United States and that Bush's claims to have inherent authority outside of those rules did not pass Constitutional muster.

Congress appears clearly to have intended to -- and did -- establish the exclusive means for foreign intelligence surveillance activities to be conducted. 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.

Walker, the chief judge of the Northern District of California, affirmed that the Foreign Intelligence Surveillance Act is the exclusive legal method for conducting surveillance inside the United States against suspected spies and terrorist. The Bush Administration argues that Congress's vote to authorize military force against Al Qaeda and the president's inherent war time powers were exceptions to the exclusivity provision.

Not so, according to Walker:

This provision and its legislative history left no doubt that Congress intended to displace entirely the various warrantless wiretapping and surveillance programs undertaken by the executive branch and to leave no room for the president to undertake warrantless surveillance in the domestic sphere in the future.

As Threat Level pointed out last night, the ruling is likely to have little real consequence other than embarrassing Congress for failing to have the courage to stand up to defend the laws it itself passed. Instead of holding hearings and sending subpoenas, Congress is set to largely legalize dragnet surveillance being set up inside American telecom infrastructure and to make it very clear that they are serious about stopping warrantless wiretapping, they are adding exclamation points to the exclusivity provision.

They will also likely give retroactive amnesty to telecom companies that agreed to illegal and sweeping surveillance requests from the same government agencies that dole out fat secret contracts to the very same telecom companies.

So thanks to Congress's pending meddling with the courts in capitulation to the President, Vaughn Walker's ruling is the closest we will likely come to a judicial ruling on the limits of presidential power to spy on Americans.

Judge Vaughn Walker is no raging San Francisco liberal. He was appointed to the bench by President George H W Bush, and is known for his intellect and libertarian streak.

Walker also ruled that the government's claims that the case would endanger national security did not overrule the provisions of law that let a spied-upon person sue the government for breaking the law.

Glenn Greenwald has written on this subject endlessly, and he steps up once again to provide the necessary context:

FISA -- enacted in 1978 and amended many times to accommodate modern communications technology -- has no expiration date. The Protect America Act, which Congress enacted last August to legalize warrantless eavesdropping on Americans, had a 6-month sunset provision and thus already expired back in February, restoring FISA as the governing law. Thus, if Congress does nothing now, FISA will continue indefinitely to govern the Government's power to spy on the communications of Americans.

And for the records, yes, Greenwald's over the top writing style is both needless and tiresome, but he's worth tracking nonetheless. Today's post is an example of why:

I would really like to know where people like Soderberg get the idea that the U.S. President has the power to "order" private citizens to do anything, let alone to break the law, as even she admits happened here. I'm asking this literally: how did this warped and distinctly un-American mentality get implanted into our public discourse -- that the President can give "orders" to private citizens that must be complied with? Soderberg views the President as a monarch -- someone who can issue "orders" that must be obeyed, even when, as she acknowledges, the "orders" are illegal.

That just isn't how our country works and it never was. We don't have a King who can order people to break the law. I have no doubt that people like Nancy Soderberg are spending the July 4 weekend paying shallow homage to the Founding, all the while being completely ignorant of or indifferent to the principles they pretend to celebrate. Just compare her claim that telecoms were justified, even required, to comply with the President's "order" to break the law with Thomas Paine's view, set forth in his 1776 revolutionary pamphlet Common Sense concerning how our country was supposed to work:

But where says some is the King of America? I'll tell you Friend, he reigns above, and doth not make havoc of mankind like the Royal Brute of Britain. Yet that we may not appear to be defective even in earthly honors, let a day be solemnly set apart for proclaiming the charter; let it be brought forth placed on the divine law, the word of God; let a crown be placed thereon, by which the world may know, that so far as we approve as monarchy, that in America the law is King. For as in absolute governments the King is law, so in free countries the law ought to be King; and there ought to be no other.

...So much of this comes from the constant fetishizing of the President as the Supreme Leader, "our" Commander-in-Chief, rather than -- as the Constitution explicitly states -- "commander in chief of the Army and Navy of the United States, and of the militia of the several states, when called into the actual service of the United States." In the U.S., private actors don't have government "commanders" who can "order" or "direct" them to do anything. Even soldiers, for whom the President is actually the Commander-in-Chief, are prohibited from obeying unlawful orders...

Beyond that, her mentality reveals a profound ignorance of privacy laws and the history of spying abuses in the this country. Soderberg repeats the standard Democratic excuse for immunizing telecoms -- that telecoms are "the wrong target" because "the government should be held responsible, not private industry," and thus, "the companies that followed those directives are not the ones to blame for that abuse of presidential power."

This is all based on the false claim that privacy laws such as FISA were meant to restrict Government conduct, not those of telecoms. The exact opposite is true. FISA and other laws which the telecoms broke -- not just after 9/11, but for many years -- were written specifically to restrain how telecoms cooperate with Government spying requests. As Cindy Cohn, lead counsel for Electronic Frontier Foundation, explained when I interviewed her last October:

We brought the case only against AT&T because AT&T has an independent duty to you, its customers, to protect your privacy. This is a very old duty, and if you know the history of the FISA law, you'll know that it was adopted as a result of some very deep work done by the Church Committee in Congress, that revealed that Western Union and the telegraph companies were making a copy of all telegraphs going into and outside the U.S. and delivering them to the Government.

So this was one of the big outrages uncovered by the Church Committee -- in addition to the rampant surveillance of people like Martin Luther King.

As a result of this, Congress very wisely decided that it wasn't sufficient to simply prevent the Government from listening in on your calls - they had to create an independent duty for the telecom carries not to participate in illegal surveillance.

So they are strictly forbidden from handing over your communications and communications records to the Government without proper legal process.

Contrary to what the Nancy Soderbergs of the world want people to believe, these laws enacted by the American people in order to prevent spying abuses weren't only directed at the Government but specifically at the telecom industry as well. The whole point was to compel telecoms by force of law to refuse illegal Government "orders" to allow spying on their customers. That's why Qwest and others refused to "comply", but the telecoms that were hungry for extremely lucrative government contracts agreed to break the law. They did it because, motivated by profit, they chose to, not because they were compelled. Breaking the law on purpose and then profiting from the lawbreaking is classic criminal behavior. The conduct which those laws were designed to make illegal -- and which they unambiguously outlawed -- is exactly what the telecoms did here....

The reason the President broke the law was because he claimed that he has the power under Article II to ignore Congressional statutes restricting eavesdropping. He still claims that power, and this law does nothing to address that. It does the opposite: by putting an end to the pending lawsuits against the telecoms, it ensures that this Article II theory of presidential omnipotence will continue undisturbed -- both for the current President and for the next ones. To assert that this law does anything meaningful to address the Bush/Addington/Yoo theory of presidential lawbreaking that gave rise to this scandal is simply false. It blocks the only avenue for adjudicating the central cause of presidential lawbreaking, thus ensuring its continuation.

I realize that the legal issues here can often appear to be quite complex, but if you look past the noise to hear the clear channel underneath you'll see that complexity is mostly an illusion. In order to avoid admitting the truth - that the president violated the constitution and contravened the FISA statutes - our political elites are contorting themselves into ever-stranger positions. And in order to avoid admitting the truth of that, our media elites are almost cheerily following along.

If our elected representatives won't defend the constitution on their own, then we'll just have to make them.

He is our president, not our king.

Our rights are unalienable, granted to us by virtue of our birth, and not by our benevolent rulers.

There is no "national security" exemption in the constitution.

There has been no declaration of war.

He is the Commander in Chief of the Armed Forces, and not of the United States.

When he says "jump," we do not have to ask how high. When he says "spy," we don't have to ask "on whom."

The constitution could not possibly be more clear. If changing times necessitate a changed constitution, then let's debate that. But until then, the clear meaning of the document stands.

Why is this so hard for so many to see and understand?