The Judiciary Strikes Back

The government fails to kill off a court challenge to NSA snooping.

By Patrick Radden KeefePosted Friday, July 21, 2006, at 4:00 PM ET

Until Thursday, the NSA wiretapping scandal had gone remarkably well for the Bush administration. Congress and the Federal Communications Commission opted not to investigate, and after some initial alarm, much of the public seemed untroubled as well. By confirming allegations that he had authorized eavesdropping within the United States, President Bush managed to turn the story into a tough-on-terrorism example and dare critics to explain just what it was about fighting terror that made them so uncomfortable. It was masterful politics.
But that all changed when a federal judge in San Francisco on Thursday issued a ruling on an obscure procedural point in a court case between the Electronic Frontier Foundation, a digital rights nonprofit, and AT&T. Judge Vaughn Walker rejected the government's claim that because of the doctrine of state secrets, traditionally used to prevent the introduction into court of specific evidence that might compromise national security, he should dismiss EFF's entire case against the phone company. It's almost unheard of for a judge to shoot down a state-secrets claim, and in that respect, Walker's decision represents a setback for the administration. But the Walker opinion signals something more significant, as well: a rejection of the Bush administration's vision of a wartime executive that can govern unchecked. The judiciary is striking back.

Here's the background for the EFF case. In January, an AT&T employee named Mark Klein walked into EFF's offices in San Francisco and said he had some information about the NSA. Klein explained that in 2002 an NSA agent had visited the telecommunications company "to interview a management-level technician for a special job." In 2003, a secret room was built at AT&T's Folsom Street facility in San Francisco and equipped with a Narus STA 6400, which is known to be used by government agencies for "traffic analysis" on intercepted communications. Klein furnished EFF lawyers with documents allegedly confirming that the secret room was used to tap into the fiber-optic cables through which AT&T routes its Worldnet service. Armed with the whistleblower and his evidence, EFF launched a class-action suit against the phone company in February.