The Criminal NSA Eavesdropping Program

While torture and aggressive war may have been the most serious
crimes which the Bush administration committed, its warrantless
eavesdropping on American citizens was its clearest and most undeniable
lawbreaking. Federal District Judge Vaughn Walker yesterday became the
third federal judge -- out of three who have considered the question --
to find that Bush's warrantless eavesdropping program was illegal (the
other two are District
Judge Anna Diggs Taylor and 6th
Circuit Appellate Judge Ronald Gilman who, on appeal from Judge
Taylor's decision, in dissent reached the merits of that
question [unlike the two judges in the majority who reversed the
decision on technical "standing" grounds] and adopted Taylor's
conclusion that the NSA program was illegal).

That means that all 3 federal judges to consider the question have
concluded that Bush's NSA program violated the criminal law
(FISA). That law provides that anyone who violates it has committed a
felony and shall
be subject to 5 years in prison and a $10,000 fine for each
offense. The law really does say that. Just click on that
link and you'll see. It's been obvious for more than four years that
Bush, Cheney, NSA Director (and former CIA Director) Michael Hayden and
many other Bush officials broke the law -- committed felonies -- in
spying on Americans without warrants. Yet another federal judge has now
found their conduct illegal. If we were a country that actually lived
under The Rule of Law, this would be a huge story, one that would
produce the same consequences for the lawbreakers as a bank robbery,
embezzlement or major drug dealing. But since we're not such a country,
it isn't and it doesn't.

Although news reports are focusing (appropriately) on the fact that
Bush's NSA program was found to be illegal, the bulk of Judge Walker's
opinion was actually a scathing repudiation of the Obama DOJ. In fact,
the opinion spent almost no time addressing the merits of the claim that
the NSA program was legal. That's because the Obama DOJ -- exactly
like the Bush DOJ in the case before Judge Taylor -- refused to
offer legal justifications to the court for this eavesdropping.
Instead, the Obama DOJ took the imperial and hubristic position that the
court had no right whatsoever to rule on the legality of the program
because (a) plaintiffs could not prove they were
subjected to the secret eavesdropping (and thus lacked "standing" to
sue) and (b) the NSA program was such a vital "state
secret" that courts were barred from adjudicating its legality.

Those were the arguments that Judge Walker
scathingly rejected. All of the court's condemnations
of the DOJ's pretense to imperial power were directed at the Obama
DOJ's "state secrets" argument (which is exactly the
same radical and lawless version, as TPM
compellingly documented, used by the Bush DOJ to such
controversy). From the start, the Obama DOJ has engaged in one
extraordinary maneuver after the next to shield this
criminal surveillance program from judicial scrutiny. Indeed,
their stonewalling at one point became so extreme that the
court actually threatened the Obama DOJ with sanctions. And what TPM calls
the Obama DOJ's "Bush-mimicking state secrets defense" has been used by
them in one case after the next to conceal and shield from judicial
review a wide range of Bush crimes -- including torture,
renditions and surveillance.
As the Electronic Frontiers Foundation put
it: "In Warrantless Wiretapping Case, Obama DOJ's New
Arguments Are Worse Than Bush's."

That's why this decision is such a stinging rebuke to the Obama
administration: because it is their Bush-copying tactics, used
repeatedly to cover up government crimes, which the court yesterday so
emphatically rejected. And it's thus no surprise that media accounts
tie the Obama administration to the cover-up of this program at least as
much as the Bush administration. See, for instance: Charlie Savage
and James Risen in The New
York Times ("A federal judge ruled Wednesday that the National
Security Agency's program of surveillance without warrants was illegal, rejecting
the Obama administration's effort to keep shrouded in secrecy
one of the most disputed counterterrorism policies of former President
George W. Bush"); Time ("The
judge's opinion is pointed and fiercely critical of the Obama
Administration's Justice Department lawyers" and "The
judge claims that the Obama Administration is attempting to place itself
above the law"). The 9th Circuit Court of Appeals also
previously condemned the Bush/Obama "state secrets" position as
abusive and lawless.

In December, 2005, The New York Times revealed that the
Bush administration had been doing for years exactly that which the law
unambiguously said was a felony: eavesdropping on the electronic
communications of Americans (telephone calls and emails) without
warrants. We knew then it was a crime. Three federal judges have now
concluded that it was illegal. And yet not only do we do nothing about
it, but we stand by as the Obama administration calls this criminal
program a vital "state secret" and desperately tries to
protect it and the lawbreakers from being subject to the rule of law.
This decision may make it more difficult for the Obama administration
to hide behind sweeping secrecy claims in the future, but it won't
negate the fact that we have decided that our leading political
officials are completely free to commit crimes while in power and to do
so with total impunity.

* * * * *

One related note: back when Judge Diggs Taylor ruled that the Bush
NSA program was unconstitutional, law professors Orin Kerr and Ann
Althouse (the former a sometimes-Bush-apologist and the latter a
constant one) viciously disparaged her and her ruling by claiming that
she failed to give sufficient attention to the Government's arguments as
to why the program was legal. Althouse was even allowed to launch
that attack in an Op-Ed in The New York Times. But
as
I documented at the time, the argument made by these right-wing law
professors to attack Judge Taylor was grounded in total
ignorance: the reason the court there didn't pay much
attention to the legal justifications for the NSA program was because
the Bush DOJ -- just like the Obama DOJ here -- refused to offer any
such justifications, insisting instead that the court had no right even
to consider the case.

That's why I find it darkly amusing that, today, the same Orin Kerr
is solemnly
lecturing The New York Times that Judge Walker here did
not consider the merits of the claims about the program's legality
because the Obama DOJ argued instead "that Judge Walker couldn't reach
the merits of the case because of the state secrets privilege." Kerr is
wrong when he says that this ruling does not constitute a decision that
the Bush NSA program was illegal -- it does exactly that, because the
plaintiffs offered evidence and arguments to prove it was illegal and
the Obama DOJ (like the Bush DOJ before it) failed to offer anything to
the contrary -- but he 's right that Judge Walker did not focus on the
merits of the defenses to the NSA program because the Obama DOJ (like
the Bush DOJ) refused to raise any such defenses. But exactly the same
thing was true for Judge Taylor when she ruled three years ago that
the NSA program was illegal, which is why the right-wing attacks on her
judicial abilities back then (led by Kerr and Althouse) were so
frivolous and misinformed.