http://www.nytimes.com/2010/04/01/us/01nsa.html

WASHINGTON — 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.

The Justice Department said it was reviewing the decision and had made no decision about whether to appeal.

The ruling by Judge Walker, the chief judge of the Federal District Court in San Francisco, rejected the Justice Department’s claim — first
asserted by the Bush administration and continued under President Obama
— that the charity’s lawsuit should be dismissed without a ruling on
the merits because allowing it to go forward could reveal state
secrets.

The judge characterized that expansive use of the so-called state-secrets privilege as amounting to “unfettered executive-branch discretion” that had
“obvious potential for governmental abuse and overreaching.”

That position, he said, would enable government officials to flout the warrant law, even though Congress had enacted it “specifically to rein
in and create a judicial check for executive-branch abuses of
surveillance authority.”

Because the government merely sought to block the suit under the state-secrets privilege, it never mounted a direct legal defense of the
N.S.A. program in the Haramain case.

Judge Walker did not directly address the legal arguments made by the Bush administration in defense of the N.S.A. program after The New York
Times disclosed its existence in December 2005: that the president’s
wartime powers enabled him to override the FISA statute. But lawyers
for Al Haramain were quick to argue that the ruling undermined the
legal underpinnings of the war against terrorism.

One of them, Jon Eisenberg, said Judge Walker’s ruling was an “implicit repudiation of the Bush-Cheney theory of executive power.”

“Judge Walker is saying that FISA and federal statutes like it are not optional,” Mr. Eisenberg said. “The president, just like any other
citizen of the United States, is bound by the law. Obeying
Congressional legislation shouldn’t be optional with the president of
the U.S.”

A Justice Department spokeswoman, Tracy Schmaler, noted that the Obama administration had overhauled the department’s procedures for invoking
the state-secrets privilege, requiring senior officials to personally
approve any assertion before lawyers could make it in court. She said
that approach would ensure that the privilege was invoked only when
“absolutely necessary to protect national security.”

The ruling is the second time a federal judge has declared the program of wiretapping without warrants to be illegal. But a 2006 decision by a
federal judge in Detroit, Anna Diggs Taylor, was reversed on the
grounds that those plaintiffs could not prove that they had been
wiretapped and so lacked legal standing to sue.

Several other lawsuits filed over the program have faltered because of similar concerns over standing or because of immunity granted by
Congress to telecommunications companies that participated in the
N.S.A. program.

By contrast, the Haramain case was closely watched because the government inadvertently disclosed a classified document that made
clear that the charity had been subjected to surveillance without
warrants.

Although the plaintiffs in the Haramain case were not allowed to use the document to prove that they had standing, Mr. Eisenberg and six
other lawyers working on the case were able to use public information —
including a 2007 speech by an F.B.I. official who acknowledged that Al Haramain had been placed under surveillance — to prove it had been wiretapped.

Judge Walker’s opinion cataloged other such evidence and declared that the plaintiffs had shown they were wiretapped in a manner that required
a warrant. He said the government had failed to produce a warrant, so
he granted summary judgment in favor of the plaintiffs.

But Judge Walker limited liability in the case to the government as an institution, rejecting the lawsuit’s effort to hold Robert S. Mueller III, the F.B.I. director, personally liable.

Mr. Eisenberg said that he would seek compensatory damages of $20,200 for each of the three plaintiffs in the case — or $100 for each of the
202 days he said they had shown they were subjected to the
surveillance. He said he would ask the judge to decide how much to
award in punitive damages, a figure that could be up to 10 times as
high. And he said he and his colleagues would seek to be reimbursed for
their legal fees over the past five years.

The 2005 disclosure of the existence of the program set off a national debate over the limits of executive power and the balance between
national security and civil liberties. The arguments continued over the
next three years, as Congress sought to forge a new legal framework for
domestic surveillance.

In the midst of the presidential campaign in 2008, Congress overhauled the Foreign Intelligence Surveillance Act to bring federal statutes
into closer alignment with what the Bush administration had been
secretly doing. The legislation essentially legalized certain aspects
of the program. As a senator then, Barack Obama
voted in favor of the new law, despite objections from many of his
supporters. President Obama’s administration now relies heavily on such
surveillance in its fight against Al Qaeda.

The overhauled law, however, still requires the government to obtain a warrant if it is focusing on an American citizen or an organization
inside the United States. The surveillance of Al Haramain would still
be unlawful today if no court had approved it, current and former
Justice Department officials said.

But since Mr. Obama took office, the N.S.A. has sometimes violated the limits imposed on spying on Americans by the new FISA law. The
administration has acknowledged the lapses but said they had been
corrected.