Warrantless Wiretaps Finally Struck Down

By D.H. Kerby

Instituted in 2001 and exposed four years later, the warrantless wiretapping of countless US citizens as well as foreigners has finally been ruled illegal by a federal judge.

In Al-Haramain Islamic Foundation, Inc. v. Obama, Federal District Court Judge Vaughn Walker found for the plaintiff, a now-defunct charity which was also a “specially designated global terrorist organization” in the parlance of the US national security establishment.

However, “(R)ather than targeting military entities in the middle east, we were actually listening to a lot of everyday ordinary people who really in many ways had absolutely nothing to do with terrorism,” said Adrienne Kinne, a National Security Agency whistleblower, to MSNBC’s Rachel Maddow in 2008.

Sen. Russ Feingold (D-Wis.), who sits on both the Intelligence and the Judiciary Committees said, “From the day that I learned about the warrantless wiretapping program in 2005, I have been convinced that it was illegal. Now, despite the government trying to throw up every procedural roadblock imaginable in this case, the judge has ruled that the Bush Administration broke the law. This decision is a positive step toward finally achieving some accountability for the illegal program that President Bush authorized for more than five years. We can and must fight terrorism aggressively without breaking the law.”

The Bush administration’s post-9/11 program flew in the face of judicial decisions going back decades which said that the Fourth Amendment applies to electronic eavesdropping as well as to physical searches.

Ruling, in effect, that the government’s attempt to stop the lawsuit by recourse to the state secrets privilege amounted to overreaching on the part of the Executive Branch, the court issued a very substantive rebuke to the administration’s attempts invoke that privilege, a favorite of the Bush administration and one which has also been used on many occasions to deny survivors of torture their day in court. It would assert that in order for a legal proceeding to go ahead, secrets of state would be revealed in court.

The reason we know about the widespread warrantless wiretapping is Thomas Tamm, a former Justice Department employee who blew the whistle on the program after concluding that the office in which he was working may have been involved in unlawful conduct, and after developing pangs of conscience about the practice of extraordinary rendition, according to an interview he gave to Maddow in 2008.

Speaking to the National Whistleblowers Assembly on Capitol Hill in 2009, Tamm said that he believed himself to be under some sort of criminal investigation as the result of his disclosures about warrantless wiretapping.

Kevin Bankston, a senior staff attorney at the Electronic Frontier Foundation specializing in free speech and privacy law, was a fellow at the foundation for 2003-05, according to that foundation’s website, www.eff.org. The site goes on to say that his fellowship project focused on the impact of post-9/11 anti-terrorism laws and surveillance initiatives on online privacy and free expression.

In an article on eff.org about the Al-Haramain decision, Bankston writes that “In his opinion, Judge Walker found that the plaintiffs had succeeded in making out a case based solely on non-classified public evidence that the government had eavesdropped on their phone calls. Because the government refused to confirm or deny that it had ever gotten a court order authorizing that wiretapping, Walker concluded that the government had failed to dispute the plaintiffs’ claims. Walker then held that the government violated FISA (The Foreign Intelligence Surveillance Act) when it spied on the charity without first obtaining an order from the secretive Foreign Intelligence Surveillance Court to authorize the spying.”

D.H. Kerby is a writer in Philadelphia. Email DH@DHKerby.com

From The Progressive Populist, May 1, 2010