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First, a little bit ‘o background courtesy of Glenn Greenwald:

…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. It doesn’t expire….

You got that, Claire?

Now, to the latest interesting development, via EFF:

Breaking News: Court Holds That FISA Preempts State Secret Privilege

Posted by Kurt Opsahl

New NSA Spying Decision Undermines Arguments for Telecom Immunity

Today, Chief Judge Vaughn Walker of the Northern District of California, issued an opinion in Al Haramain v. Bush, one of the cases challenging the NSA warrantless wiretapping program. The Court found that the Foreign Intelligence Surveillance Act (FISA) preempted the state secret privilege. This important decision is particularly timely, as it undermines key arguments for telecom immunity on the eve of the Senate vote on a FISA bill, set for next week.

[emphasis added]

You got that, Claire?

The United States District Court for the Northern District of California issued an order day, on remand from the court of appeals:







MDL Docket No 06-1791 VRW

ORDER (pdf)

This order pertains to:

Al-Haramain Islamic Foundation et

al v Bush et al (C-07-0109 VRW)…

And what did the order actually state?:

…The lack of precedents under section 1810 complicates the task of charting a path forward. The court of appeals reversed the Oregon district court’s plan for allowing plaintiffs to proceed with their suit, but did not suggest a way for plaintiffs to proceed without using the Sealed Document. Nonetheless, the court believes that dismissal with prejudice is not appropriate. Accordingly, plaintiffs’ FISA claim will be dismissed with leave to amend. Plaintiffs should have the opportunity to amend their claim to establish that they are “aggrieved persons” within the meaning of 50 USC § 1801(k). In the event plaintiffs meet this hurdle, the court will have occasion to consider the treatment of the Sealed Document under section 1806(f) and the significant practical challenges of adjudicating plaintiffs’ claim under section 1810.

For the reasons stated herein, plaintiffs’ claim under FISA is DISMISSED with leave to amend. Plaintiffs shall have thirty (30) days to amend their complaint in accordance with this order. Should plaintiffs seek to amend their non-FISA claims, they shall do so by means of a noticed motion before this court in accordance with the local rules.


What had the government argued (earlier in the text of the order)?:

…Having thus dealt with the first issue, the court of appeals turned to the government’s second issue on appeal–Al-

Haramain’s standing–and held that plaintiffs could not establish standing to proceed with their lawsuit without the Sealed Document because they could not establish a “concrete and particularized” injury-in-fact under the principles of Lujan v Defenders of Wildlife, 504 US 555 (1992): “Al-Haramain cannot establish that it has standing, and its claims must be dismissed, unless FISA preempts the state secrets privilege.” 507 F3d 1205…


You got that, Claire?