THE CRIMINAL NSA EAVESDROPPING PROGRAM
by Glenn Greenwald

Salon.com
Thursday, April 1, 2010

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.

Glenn Greenwald was previously a constitutional law and civil
rights litigator in New York. He is the author of the New York Times
Bestselling book "How Would a Patriot Act?," a critique of the Bush
administration’s use of executive power, released in May 2006. His
second book, "A Tragic Legacy", examines the Bush legacy.

From: Emil Lazarian | Ararat NewsPress