Thursday, April 1, 2010

After all these years - warrantless wiretapping ruled illegal

By Carol Gee


In some ways, this is another of my celebratory posts.  My regular readers know that I just passed my fifth year of writing my political blog, S/SW.  That I celebrated a few days ago.  Today I am so very thankful that a federal judge has again ruled against the government's domestic spying lawlessness and claims of state secrets, declaring that Bush illegally wiretapped two Americans, as reported by David Kravets of Wired Threat Level (3/31/10). The government had listened in on telephone conversations of two lawyers who represented a Saudi charity that is now out of business. The only reason the lawyers found out about the surveillance, says Kravets, was because the case's . . . 

allegations were initially based on a classified document the government accidentally mailed to the former Al-Haramain Islamic Foundation lawyers. The document was later declared a state secret and removed from the long-running lawsuit weighing whether a sitting U.S. president may create a spying program to eavesdrop on Americans’ electronic communications without warrants.

The news almost restores my faith that my nation's core constitutional values still matter under law.  Blogger "emptywheel" (3/31/10) put Judge Vaughn Walker's decision in simple terms.  (See original document: Judge Vaughn Walker's Decision/ al Haramain order (3/31/10) - 45 page pdf. Includes a good executive summary at the beginning. Hat tip to Firedoglake). To quote Marcy Wheeler:

Walker is basically saying, “Well, government, if you won’t give us any evidence to prove you legally wiretapped al-Haramain, and given all the evidence they’ve presented proving they were wiretapped, then they win!”
Here’s his argument. The government had a way to defend against al-Haramain’s case directly, in camera, but they refused to avail themselves of it.
. . . As I said: the government refused to engage on the merits, al-Haramain made a sufficient prima facie case, so the government has basically conceded the case.

In other ways this post harbors a ton of regrets.   I regret that my area of specialization brought us almost nothing but heartbreak for all the years I have been covering the subject.  My reading and writing passion has been coverage of the erosion of civil liberties and flouting of the rule of law, following the tragic 9/11/01 attacks on the USA.  (See "Previous S/SW posts" below). Bolstered by excess secrecy, hubris, paranoia and trauma reaction, the Bush and, yes, the Obama administrations have trampled our civil liberties in the name of national security.  For almost 10 years civil libertarians had reason for despair.  Yesterday's court case decision, however, was a bright spot for all of us who have long known that the government ran an illegal program and got away with it.

Of course it is not over 'till it's over.  We do not know yet whether the Obama Justice Department will appeal the case or not.  Marcy Wheeler thinks not, because "I think Walker has crafted his ruling to give the government a big incentive not to appeal the case."  She cites two additional parts of the ruling favorable to the government.  One, that the judge refused to rule on the merits of the case and, two, that he dismissed the part of the suit that named FBI Director Robert Mueller a defendant.  Wheeler is ". . . betting that the government will be willing to accept the ruling that it illegally wiretapped al-Haramain in exchange for the ability to leave details of how and what it did secret, leaving the claim of State Secrets largely intact." 

I recommend Glenn Greenwald's very fine piece at Salon today, "The criminal NSA eavesdropping program." It is in his usually fierce constitutional advocate's style, pulling no punches about the larger current implications of Judge Walker's courageous decision.  He discusses how the ruling reinforces that facts that Bush administration officials broke criminal law, that three federal judges now have said the eavesdropping was illegal and that the Walker "opinion was actually a scathing repudiation of the Obama DOJ," who had taken "the imperial and hubristic position [in the suit] that the court had no right whatsoever to rule on the legality of the program," the state secrets argument.  Greenwald effectively lays out some of the pro/con reaction of the media to the ruling in his closing paragraphs, as well as the history of the discovery and revelation of the program by the New York Times.*

My conclusion is an ambivalent one.  I am extremely glad the ruling came down as strongly as it did, and that the Obama administration has not yet said whether the ruling would be appealed.  I am extremely sad that there is no clear trend in the Obama administration towards upholding the rule of law here. We have no proof whatsoever that standard civil liberties protections have been restored.  And we have little hope that anyone will ever be held accountable for breaking criminal law.  It does not have to be this way.  The question of civil liberties protection vs. national security never should have been allowed to become a zero sum game.

*New York Times articles reveal existence of warrantless wiretapping program:

  • Bush Lets U.S. Spy on Callers Without Courts, by James Risen and Eric Lichtblau - December 16, 2005 Note this quote: 

    The White House asked The New York Times not to publish this article, arguing that it could jeopardize continuing investigations and alert would-be terrorists that they might be under scrutiny. After meeting with senior administration officials to hear their concerns, the newspaper delayed publication for a year to conduct additional reporting. Some information that administration officials argued could be useful to terrorists has been omitted.
  • Spying on Ordinary Americans - editorial: January 18, 2006

Previous S/SW posts on this subject:

(Cross-posted at South by Southwest.)
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