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Judge Rules That Bush-Era Wiretapping Practices Were, In Fact, Illegal

by Amar Toor on April 1, 2010 at 10:05 AM

Among the many controversial policies enacted under the George W. Bush administration, perhaps the most legally nebulous was the National Security Agency's wiretapping program, which authorized federal agents to monitor Americans' phone calls and e-mails in the name of national security. When it was revealed that federal officials had been monitoring the phone calls of the now defunct Islamic charity Al Haramain, the Oregon-based organization took the NSA to court. Yesterday, despite the Obama administration's best attempts to close the case, a federal judge ruled in favor of Al Haramain, officially confirming the illegality of the NSA's surveillance policies.

As the New York Times reports, Judge Vaughn R. Walker, in a 45-page opinion, declared that the NSA had been in clear violation of a 1978 statute that requires any federal body to obtain court approval before conducting domestic surveillance. Walker also ruled that the government must pay damages to both the charity and two of its lawyers, who were also "subjected to unlawful surveillance" in 2004. The judge's ruling came as a direct challenge to the Justice Department, as well as to the Obama administration, both of which had argued for the dismissal of the case on the grounds that further investigations could reveal state secrets. Justice Department officials said they were still reviewing the case, and had not yet decided whether or not they would appeal the ruling.

Since 2005, when the NSA's program was first publicized, Congress has conducted a thorough overhaul of the Foreign Intelligence Surveillance Act (FISA), and has effectively legalized many of the measures authorized by the Bush administration. Current legislation, however, still requires that intelligence agents have search warrants prior to wiretapping, meaning that the lawyers for Al Harmain have a legitimate case, even by today's standards.

This ruling should, at the most basic level, close the door on an unfortunate era that was marred by both abuse of executive power, and disregard for well-established legal procedure. At the same time, Walker's decision should set a standard of legislative protocol for the current administration, which has already admitted to occasional FISA violations, even after the most recent 2008 overhaul. As Al Haramain lawyer Jon Eisenberg says, "Obeying Congressional legislation shouldn't be optional with the president of the U.S." We certainly hope that future administrations take those words to heart. [From: New York Times]

Tags: barackobama, bush, court, george bush, GeorgeBush, government, judge, law, lawsuit, nsa, obama, patriotact, politics, privacy, top, wiretapping

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