McClatchy-Tribune News Service The Sacramento Bee
Monday, Apr. 5, 2010
The following editorial appeared in the Fort Worth Star-Telegram on Friday, April 2:
The Bush administration's secret program of wiretapping U.S. citizens in the name of nabbing terrorists offended a lot of people because it bypassed a court system Congress set up for the purpose of overseeing such wiretaps.
Even though the Foreign Intelligence Surveillance Act court acts in secret, the administration claimed constitutional authority to spy without going to the court first.
When The New York Times in late 2005 revealed the existence of the National Security Agency's Terrorist Surveillance Program, civil libertarians challenged its constitutionality. But there were Kafkaesque stumbling blocks.
The challengers needed legal standing to sue. For legal standing, they needed proof that they had been secretly wiretapped. But the details about wiretaps are classified. And the government argued, under the "state secrets" privilege, that the information is too sensitive to be made public. So, it's been almost impossible for individuals to make a legal case showing that illegal wiretapping occurred.
But Wednesday, a federal judge said lawyers for an Islamic charity in Oregon (now disbanded) could move forward with a lawsuit because they had enough evidence from the public record to show that their international calls had been monitored without a warrant.
U.S. District Judge Vaughn Walker in California wasn't deciding the constitutionality of the surveillance program, which ended in 2007. But he did say the Justice Department couldn't get the suit thrown out by arguing that the risk of revealing national security secrets should trump FISA's requirements.
Accepting that rationale, he said, would lead to "unfettered executive-branch discretion."
All along, debate over warrantless wiretapping has been about the extent of executive branch powers to spy on Americans to disrupt terrorists, particularly al-Qaeda. There are serious interests involved: national security and fundamental principles of freedom.
FISA set up a federal court that reviews - and almost always approves - Justice Department requests to intercept international calls, emails and other communications.
But the Bush administration contended that it could legally operate outside the system.
Except the government accidentally sent a classified document to the Al-Haramain charity indicating that calls between lawyers Wendell Belew and Asim Ghafoor and the charity's director in Saudi Arabia had been tapped in 2004, shortly before it was designated a terrorist organization.
Because of the document's sensitivity, it couldn't be used in court to prove illegal wiretapping. But the plaintiffs also had public evidence: a speech by an FBI official, plus testimony before Congress that the charity had been subject to surveillance.
Even though the Obama administration has put in place new rules for asserting the "state secrets" privilege, the Justice Department continued using it to try to get the Al-Haramain suit dismissed. In his ruling, Walker said the government had many chances to show that a FISA warrant existed but never produced one.
In 2008, Congress passed and President Bush signed a FISA court expansion. And in 2008 (the most recent report available), the court denied only one of the 2,082 warrant applications.
The mechanism works. It's still not clear enough that it needed to be ignored.
The plaintiffs are reportedly seeking more than $60,000 in compensation, plus punitive damages and attorneys' fees for their legal team.
Whether the administration settles the case or keeps appealing, taxpayers are going to pay.
