Commentary: In pursuing terrorists, did Bush administration go too far?

The Fort Worth Star-TelegramApril 2, 2010 

The Bush administration's secret program of wiretapping U.S. citizens in the name of nabbing terrorists offended a lot of people because it bypassed a court system Congress set up for the purpose of overseeing such wiretaps.

Even though the Foreign Intelligence Surveillance Act court acts in secret, the administration claimed constitutional authority to spy without going to the court first.

When The New York Times in late 2005 revealed the existence of the National Security Agency's Terrorist Surveillance Program, civil libertarians challenged its constitutionality. But there were Kafkaesque stumbling blocks.

The challengers needed legal standing to sue. For legal standing, they needed proof that they had been secretly wiretapped. But the details about wiretaps are classified. And the government argued, under the "state secrets" privilege, that the information is too sensitive to be made public. So, it's been almost impossible for individuals to make a legal case showing that illegal wiretapping occurred.

But Wednesday, a federal judge said lawyers for an Islamic charity in Oregon (now disbanded) could move forward with a lawsuit because they had enough evidence from the public record to show that their international calls had been monitored without a warrant.

U.S. District Judge Vaughn Walker in California wasn't deciding the constitutionality of the surveillance program, which ended in 2007. But he did say the Justice Department couldn't get the suit thrown out by arguing that the risk of revealing national security secrets should trump FISA's requirements.

Accepting that rationale, he said, would lead to "unfettered executive-branch discretion."

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