Friday, July 21, 2006

NSA Wiretaps -- media missing a story

Yesterday, Judge Vaughn Walker of the Northern District of California ruled that the lawsuit against AT&T for cooperating in the NSA warantless wiretap program could go forward. The ruling, which runs a healthy 72 pages, contains some interesting observations that I'm surprised the media hasn't picked up on. Essentially, Judge Walker hinted that he thinks the NSA wiretaps were a clearly illegal program (edited for clarity):

In Keith, the Supreme Court held that the Fourth Amendment does not permit warrantless wiretaps to track domestic threats to national security, reaffirmed the “necessity of obtaining a warrant in the surveillance of crimes unrelated to the national security interest,” and did not pass judgment “on the scope of the President’s surveillance power with respect to the activities of foreign powers, within or without this country.” Because the alleged dragnet here encompasses the communications of “all or substantially all of the communications transmitted through [AT&T’s] key domestic telecommunications facilities,” it cannot reasonably be said that the program as alleged is limited to tracking foreign powers. Accordingly, AT&T’s alleged actions here violate the constitutional rights clearly established in Keith. Moreover, because “the very action in question has previously been held unlawful,” AT&T cannot seriously contend that a reasonable entity in its position could have believed that the alleged domestic dragnet was legal.

At least one informed commentator thinks Walker is off his rocker. But I'm not so sure -- Walker is no lefty-liberal activist, and actually is one of the more creative, thoughtful guys on the Northern District bench. But even if the critics are right, why isn't this getting more play in the press? A federal judge has indicated that AT&T's actions, and by extension the NSA's, clearly violate constitutional rights! Hello? Anyone? Bueller?

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