Still Wrong on Wiretapping

SF Chronicle Editorial

One of former President George W. Bush's most disastrous legacies - his warrantless wiretaps - has picked up a curious ally in President Obama. What the new White House wants is pretty much what the old team had: secrecy cloaking an end run around civil liberties.

Obama may wish to move forward and not look back in many ways, an attitude he's adopted in brushing off a full-fledged inquiry into the excesses of the Bush anti-terror policies. But this stance is looking more than ever like willful ignorance of history in the name of political calm.

When it comes to wiretapping, Obama's position is mind-boggling. In this instance, Department of Justice lawyers are battling to bottle up a surveillance program that has San Francisco roots. One of the prime perches for spying on Americans making overseas calls was a so-called "secret room" in an AT&T office on Folsom Street. With no oversight from the courts or Congress, the telecom giant, along with others, siphoned phone calls and information to federal intelligence agencies after Sept. 11, 2001.

In the current case, several dozen phone customers are before a federal judge here asking that the government turn over data on eavesdropping. A prior suit against the phone companies for going along with the illegal surveillance was dismissed after Congress re-wrote domestic spying rules last year and indemnified the firms. Obama, then a senator, voted for changes in a surprising shift from his campaign-trail rhetoric that heavily criticized the abuses of civil liberties in the war on terrorism.

The Obama team is making the same arguments made by the Bush administration in denying it needs to explain anything. Allowing an open-court case will lay bare state secrets, your honor, and the country will lose a "crown jewel" piece of intelligence gathering, according to one Justice Department attorney. The spying may have been improper, but, sorry, we can't really talk about it.

No one would deny there's an enormous difference between the Obama and Bush policies on fighting terrorism. The choice between the two isn't even close as evidenced by Obama's pledge to stop waterboarding and close the Guantanamo Bay brig. So why give illegal wiretapping a pass, Mr. President?

For months the surveillance debate has gone on before Chief U.S. District Judge Vaughn Walker, who is clearly weary with the Washington bob-and-weave. He's even mentioned a withering government report released this month by five watchdog agencies that said the effectiveness of the illegal wiretaps was unclear.

The decision in his lap isn't an easy one. He can side with Obama lawyers and dismiss the case in the name of national security, a path that courts often take when confronted with a flag-waving invocation of homeland defense.

Or he can open up a dark chapter in the nation's history to the plain light of legal examination. Such a decision would definitely roil the waters while the truth surfaces. But since the president won't do it, it's time the courts stepped in.