The Surveillance Regime

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
Guantanamo, 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.

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 Guantanamo'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
Guantanamo litigation, habeas lawyers complain about obfuscation,
secrecy and delay not dissimilar from what they faced in the Bush era.

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 Guantanamo 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.