NSA loses a round on warrantless wiretapping in federal court

A federal district court judge in San Francisco who has presided over several cases against the National Security Agency (NSA) and its now-defunct warrantless wiretapping program appears to have finally been presented sufficient direct evidence of such wiretapping to rule in favor of the plaintiff, and to hold the government liable for damages. The facts of this case were markedly different from previous, unsuccessful suits against the NSA, in that this time the plaintiffs were able to provide evidence that they specifically had been subjected to eavesdropping of their communications in a way that should have required a warrant, although none was obtained. Judge Vaughn Walker limited his ruling to the wiretaps used against the plaintiff, and did not address the legality (or lack thereof) of the NSA’s surveillance program overall. From a legal standpoint, the case may have been more relevant for Walker’s refusal to accept the government’s assertion that the case should be dismissed without considering the merits of the plaintiff’s claims in order to protect state secrets from potential disclosure in court. The state-secrets defense is a claim of executive power first asserted by the Bush administration and again put forward by the current Justice Department legal team. The government might have had an early indication of its poor chance of succeeding with a state-secrets argument, since the suit had previously survived such a challenge when the plaintiffs received an inadvertently disclosed confidential call record from the NSA that revealed the government’s eavesdropping of the plaintiff’s communications. While the ruling probably represents a small victory for those who continue to argue that the NSA should be called to account for its activities, the specific details in this case are troubling on their own, inasmuch as they demonstrate the government’s apparent right to withhold relevant direct evidence if it hides it under a shield of national security.