WASHINGTON - President-elect Barack Obama
will face a series of early decisions on domestic spying that will test
his administration's views on presidential power and civil liberties.
The Justice Department will be asked to respond to motions in legal challenges to the National Security Agency's
wiretapping program, and must decide whether to continue the tactics
used by the Bush administration - which has used broad claims of
national security and "state secrets" to try to derail the challenges -
or instead agree to disclose publicly more information about how the
program was run.
When he takes office, Mr. Obama will inherit greater power in
domestic spying power than any other new president in more than 30
years, but he may find himself in an awkward position as he weighs how
to wield it. As a presidential candidate, he condemned the N.S.A.
operation as illegal, and threatened to filibuster a bill that would
grant the government expanded surveillance powers and provide immunity
to phone companies that helped in the Bush administration's program of
wiretapping without warrants. But Mr. Obama switched positions and
ultimately supported the measure in the Senate, angering liberal
supporters who accused him of bowing to pressure from the right.
Advisers to Mr. Obama appear divided over whether he should push
forcefully to investigate the operations of the wiretapping program,
which was run in secret from September 2001 until December 2005.
Mr. Obama recently started receiving classified briefings on intelligence operations from Mike McConnell, the director of national intelligence. The Obama transition team declined to say whether Mr. Obama had been briefed on the agency's eavesdropping operations.
His transition team also declined requests to discuss his current
views on domestic surveillance or how his administration would respond
to legal challenges growing out of it. But there has been no shortage
of debate among lawyers involved in the challenges to the program.
"I don't think President-elect Obama embraces Dick Cheney's
theory of unfettered presidential power," said Jon B. Eisenberg, a San
Francisco lawyer involved in one lawsuit against the wiretapping
program. "So if President-elect Obama doesn't embrace that theory, one
would expect a change in the direction of how the new administration
handles this litigation."
But other legal and political analysts suggest that Mr. Obama, as
president, may be more willing to accept the broadened presidential
powers that he once condemned as a candidate, particularly since
Congress has approved expanded surveillance powers for the government.
In the proposal in June that Mr. Obama ultimately voted to support,
Congress set up a new surveillance framework that gave intelligence
officials much broader authority to eavesdrop on international
communications without prior court approval.
One of the first clues of how the Obama administration will deal
with the issue of domestic surveillance may come in a court case in
Alexandria, Va., where a judge has ordered the Justice Department to
turn over material from the National Security Agency and other
intelligence agencies on possible eavesdropping on Ali al-Timimi, an
Islamic leader convicted of supporting terrorism. The Justice
Department has never acknowledged that it has used intercepts from the
N.S.A. program in any criminal or civil case, which could be unlawful
because the wiretaps were conducted without court warrants.
Mr. Timimi has claimed that he did not get a fair trial because
prosecutors secretly used N.S.A. wiretaps in his case, and he also
argues that the government has turned over to the court only
intercepted conversations that make him look guilty, while withholding
those that might prove he is innocent. A recently unsealed transcript,
citing a closed hearing, strongly suggests that the wiretaps were used
in Mr. Timimi's criminal trial.
"We believe that the undisclosed interceptions already uncovered in
this case are serious and knowing violations of federal law," said
Jonathan Turley, a lawyer for Mr. Timimi.
Meanwhile, an Islamic charity in Oregon that had its assets frozen
by the Treasury Department on the ground that it was also supporting
terrorism is pushing ahead with a lawsuit of its own. The Obama
administration must decide whether to continue to use the state-secrets
privilege in order to block the disclosure of information about any
The charity, Al-Haramain Islamic Foundation, is charging, based in
part on a classified document that the government mistakenly gave to
its lawyers, that it was the target of wiretapping without warrants.
Lawyers for the group say they believe that the N.S.A. listened
illegally not only to the international phone calls of members of the
charity itself, but also to the calls of two of its lawyers in
Mr. Eisenberg, a lawyer for Al-Haramain, said the Justice Department
had frustrated efforts to develop evidence in the case both by invoking
the state-secrets claim and by refusing to grant security clearances to
some members of the charity's legal team.
"In every way, they've stonewalled us, and the new administration
can change all that," Mr. Eisenberg said. "They can take the blindfolds
In perhaps the most critical test, civil liberties groups that are
suing major phone companies that took part in the N.S.A. program are
waiting to find out whether a federal judge will throw out the lawsuits
based on immunity granted by Congress in June.
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The Justice Department has already moved to take advantage of the
immunity provision by certifying in court that the phone companies were
complying with a presidential order. But the Electronic Frontier
Foundation, a civil liberties group that has taken the lead in the
lawsuit, maintains that Congress acted beyond its powers.
A hearing is set for Dec. 2. Cindy Cohn, legal director for the
foundation, said that as the case moved forward the new administration
could act to withdraw the immunity certification made by the Bush
"Nothing will be over by Jan. 20," when Mr. Obama is inaugurated, Ms. Cohn said.
The Obama Justice Department will inherit the litigation in all of
those cases, and some of the defense lawyers involved in the cases may
try to force legal action that could tip the hand of the new
Mr. Timimi's lawyers may soon file a new challenge, ensuring that a
new attorney general would have to decide almost immediately on taking
office how to respond.
But at least one Obama legal adviser said that new administrations
often faced complex decisions on whether to change course in the middle
of continuing legal matters.
"It's not always an easy thing for the office of legal counsel or the solicitor general on when to change a position," said Laurence H. Tribe, a professor at Harvard Law School who taught Mr. Obama when he was a law student there.
Another early decision facing the administration will be whether to
work with the Democratic-controlled Congress to investigate the Bush
administration officials who approved and ran the wiretapping program.
While Congress gave the telecommunications companies legal immunity, it
did not extend immunity to administration officials.
Some Democratic lawmakers have said they would like to conduct a
more thorough investigation than was possible during Mr. Bush's tenure,
but other Democratic advisers say they see little gain from trying to
investigate past abuses and that an investigation risks harming the
bipartisan spirit of cooperation that Mr. Obama has promised.
Since the election, Mr. Obama has not said whether his
administration would engage in such inquiries of his predecessor's
But Mr. Obama was one of only 15 senators who voted against the confirmation of Michael V. Hayden as director of the Central Intelligence Agency
in May 2006, largely because of Mr. Hayden's role as director of the
N.S.A. when the wiretapping program was begun. At the time, Mr. Obama
called Mr. Hayden a "troublesome choice" for C.I.A. director, and said
he was "voting against Mr. Hayden in the hope that he will be more
humble before the great weight of responsibility that he has not only
to protect our lives but to protect our democracy."
During the general election campaign, Mr. Obama's aides offered
cautious statements about whether he believed any investigations of
past administration actions would be appropriate.
In an interview last summer, Gregory B. Craig,
who is Mr. Obama's pick for White House counsel, said that Mr. Obama
believed that Mr. Bush had abused his power by authorizing wiretapping
without warrants. "The idea that the president can do almost anything
that he deems necessary in the name of his war powers or national
security, there is nothing in the Constitution that supports that, and
it goes against 200 years of Supreme Court jurisprudence," Mr. Craig said.
Some senior Democratic lawmakers are reluctant to comment now on
whether they will pursue investigations of the wiretapping program or
other Bush administration actions.
Senator Sheldon Whitehouse, Democrat of Rhode Island and a former
federal prosecutor who now sits on the Judiciary and Intelligence
committees, responded cautiously Friday when asked whether the Senate
might investigate the program.
"I expect Congress will work with the Obama administration to assure
the American people that their government will not go down this
unlawful path again," Mr. Whitehouse said, adding that he was awaiting
the results of an investigation of the N.S.A. program by the Justice
Department inspector general and ethics office.