Starting Points: NSA

Apr 8, 2010

The Nation - The Surveillance Regime

Editorial

This article appeared in the April 26, 2010 edition of The Nation.

April 7, 2010

The recent California federal district court ruling that the Bush administration's warrantless wiretapping violated a 1978 surveillance law was the first significant judicial rebuke to post-9/11 government eavesdropping. For that reason alone, Judge Vaughn Walker's damages award to the Muslim charity Al-Haramain and its attorneys, targets of unlawful spying in 2004, is worthy of celebration. But the ruling won't change our current deeply troubling surveillance regime. In that sense, it is a timely reminder of unfinished business.

Ever since Barack Obama took office, accountability for rights violations during the "war on terror" has been thin. Victims of wrongful overseas detention, surveillance and torture have received no apology and no reparations. Despite an early commitment to close Guantánamo, 183 prisoners remain there. Indeed, Obama has released fewer detainees than Bush did during his last year in office. And despite an early promise to protect the First Amendment rights of Muslim charities, Obama has done nothing to change the onerous application of terrorism financing laws. Walker's decision is only the second to have ruled against the so-called Terrorist Surveillance Program. All other challenges--including one against the odious 2008 FISA Amendments Act (FAA), which The Nation has joined as a plaintiff--ultimately got booted at the courthouse door.

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Even if Walker's opinion survives possible appeal, it will have no effect on the broad surveillance powers unleashed by the FAA, which passed with then-Senator Obama's support. Under that law, the government can dispense with individualized warrants, the cornerstone of Fourth Amendment privacy protections. Absent meaningful judicial review, we simply can't know how much surveillance the government is carrying out.

Continuity, not change, has characterized the conduct of Eric Holder's Justice Department. Walker documents, in his opinion, the government's persistent "refusal to cooperate with the court's orders," its improper use of procedural delays and even point-blank refusals to produce information. Yes, this was business as usual during the Bush era. But Walker was talking about events on Obama's watch.

Nor is Walker's experience unusual. In lawsuits by survivors of the CIA's "black sites" and Guantánamo's interrogation rooms, the government either keeps insisting that "state secrets" require outright dismissal or has stuck to the canard that noncitizens forcibly brought into US custody overseas lack all constitutional rights. In Guantánamo litigation, habeas lawyers complain about obfuscation, secrecy and delay not dissimilar from what they faced in the Bush era.

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Blaming the lawyers is easy. But it is the otherwise near-absolute absence of accountability that makes Walker's opinion such a lonely beacon. This absence is, in large part, a result of the Obama administration's failure to explain to the American people that the surveillance program violated the Constitution, and that unlawful and futile torture was rife in Guantánamo and the black sites.

It is not too late to win the political, or the moral, battle. It is not too late to use the bully pulpit of the presidency to explain that reckless and illegal incursions into privacy rights are no road to security. It is only by taking on that battle that the Obama administration, and not just a handful of voices on the federal bench, can produce the real change its lawyers have been fighting.