What the NSA Wiretapping Case Changes

Does Al Haramain v. Obama really end the controversial presidential power?

The National Security Agency's controversial warrantless wiretapping program has been ruled illegal by a federal judge. The case was brought by the Oregon-based Al Haramain Charity Foundation, whose lawyers' phone lines were tapped by the NSA in 2004. The case brings to a head the controversy that has surrounded the program, which was initiated by President Bush and has continued into the current administration. The Department of Justice has yet to decide whether it will appeal the decision.

• Why Case Took Five Years The Atlantic's Marc Ambinder explains that the plaintiffs had to prove they were wiretapped using only publicly available information, which was difficult because the NSA obviously does not share information about who it wiretaps. "People familiar with the case believe that the evidence relates to the mechanism by which the surveillance program was carried out: perhaps a third country, or private contractors, assisted the NSA," he writes. "Of course, this was a bit of a game, because the government accidentally gave the plaintiffs a number of classified documents which proved conclusively that the charity's phone lines were tapped."

• Puts Legal Burden on Gov't   Liberal legal blogger Marcy Wheeler reads the decision as establishing that "the government has a burden to prove it had a warrant to wiretap al-Haramain." This means that, in future wiretapping cases, it's on the government to prove it has a legal wiretap. This is a change because, in the past, the government could just say wiretaps are state secrets and reveal nothing.

• End of 'State Secrets' Defense?   Mother Jones' Nick Baumann writes, "The Al-Haramain case represents the first time that plaintiffs who claim they were wiretapped have been able to get around the so-called "state secrets" clause, which acts as a sort of 'get-out-of-court-free' card for the government in many national security cases." This is a precedent against that power. "Count this round for the civil libertarians."

• Decision Doesn't Change Wiretapping  Conservative legal blogger Orin Kerr suggests, "The decision today wasn't actually about the lawfulness of the warrantless surveillance program." The Obama administration never argued the program was legal or illegal, they simply said that the case should be dismissed for secondary reasons: Because Al Haramain could not prove it had been wiretapped (they later could) and because a case would reveal state secrets (the judge insisted it would not). Thus the decision does not overturn the wiretapping powers, he argues.

• Could Appeal Kill It?  Wired's David Kravets speculates. "In 2006, for example a Detroit federal judge declared Bush's spy program unconstitutional. But a federal appeals court quickly reversed, ruling that the plaintiffs did not have legal standing to bring a case, because they had no evidence to show that their telephone calls specifically were intercepted. The Supreme Court declined to review that ruling."

• Why They Won't Appeal  Marcy Wheeler posits, "I think Walker has crafted his ruling to give the government a big incentive not to appeal the case." She explains that, because the government only engaged Al Haramain's claim that it had been wiretapped but refused to state whether it believed that wiretapping was legal or illegal, the case's affect is very limited. It establishes some important precedents, but because the legality of wiretapping in general never seriously came up, it neither entrenches nor repudiates that power. The Obama administration is probably happy with that because it allows them to continue Bush's wiretapping without mounting a serious defense of the policy.