The Feds Lose Again on Domestic Surveillance

It would be easy to simply dismiss as just another kooky California ruling the 72-page order today from a federal district judge in San Francisco who declared that the United States, and AT&T, could not automatically stop at the outset on "state secrets" grounds a lawsuit alleging that the National Security Agency's domestic surveillance program violates the Constitution and federal law. After all, U.S. District Judge Vaughn Walker is not a true believer, even though he is a Republican appointee, and California's 9th U.S. Circuit Court of Appeals isn't exactly known these days for being on board with the current Administration.

But it would be a mistake to underestimate Judge Walker's rationale or conclusions about whether the U.S. and AT&T can dismiss the lawsuit against them before it begins by arguing that its subject matter (the spy program) is so secret it cannot be the subject matter of litigation. The judge has written a legally sound and politically practical ruling that allows the plaintiffs' massive case to move forward, at least another few steps or so, but still keeps open many strong defenses either the company or the government may later assert. As one court watcher put it early today, it's going to be hard for the appellate courts to find a good reason to overturn this ruling.

"While the court recognizes and respects the executive's constitutional duty to protect the nation from threats, the court also takes seriously its constitutional duty to adjudicate the disputes that come before it," Judge Walker wrote. "To defer to a blanket assertion of secrecy here would be to abdicate that duty, particularly because the very subject matter of this litigation has been so publicly aired. The compromise between liberty and security remains a difficult one," the judge continued, "but dismissing this case at the outset would sacrifice liberty for no apparent enhancement of security."

The feds should not be surprised by this ruling. And they should anticipate a similar ruling in another closely-watched case out of Michigan. The reason is not some cabal by activist judges. The reason is that the government is on very shaky legal ground when it asserts, as it has, that its surveillance program is necessarily beyond judicial review and also constitutional to boot. That's why the White House is apparently eager to cut a deal with Congress which would take away from the federal courts the power to decide the constitutionality of the NSA program(s) and place it in the relatively-soothing hands of the secret FISA courts. What I don't understand is why, in light of rulings like Judge Walker, that deal is still appealing to Congress.

By Andrew Cohen |  July 20, 2006; 5:10 PM ET
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oversight, we are in a state of blindness...

we an addictive personality in charge of the largest everything in the world...


would you trust this man alone in your liquor cabinet?


then why give him the key to this country? come on...he makes pee wee herman look like a solid citizen, and alfred e. neumann intelligent, hell he makes Nixon and Kissinger look trust worthy...no offense to Henry

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Posted by: without | July 23, 2006 02:08 AM

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