Obama Administration Defends Bush Wiretapping

IDG News Service — Lawyers from the U.S. Department of Justice and the Electronic Frontier Foundation squared off in a San Francisco courtroom Wednesday over a warrantless wiretapping program instituted by the Bush administration.

The EFF sued the government and officials who implemented the secret program in September in an effort to get the government to stop the practice of recording communications involving U.S. citizens without a federal warrant. The EFF argues that this warrantless wiretapping is illegal, but government lawyers say the lawsuit should be thrown out because it could lead to the disclosure of state secrets.

The judge in the case, Vaughn Walker of the U.S. District Court for the Northern District of California, already heard most of these arguments during an ongoing 2006 suit, Hepting v. AT&T, that also sought to put an end to the program. The EFF brought this second suit, Jewel v. NSA, after Congress passed a law last year that protected telecommunications companies like AT&T from lawsuits over the wiretapping.

On Wednesday, DoJ lawyer Anthony Coppolino argued that federal laws allow people to sue government employees who leak information, but do not let them sue the government itself. Coppolino added that litigating such cases could put state secrets at risk by exposing details of the government's anti-terrorist programs.

Wednesday's court date was for the Judge Walker to hear arguments over the government's motion to dismiss the case. He did not issue a ruling Wednesday and it was not known when he would do so.

The exact details of the government's warrantless wiretapping program have never been made public. It was set up in the aftermath of the September 11, 2001, terrorist attacks on the U.S. to create an early warning system for future attacks, but the EFF describes it as a "dragnet surveillance of millions of ordinary Americans"

A report (pdf) released last week by the Inspectors General of five intelligence agencies characterized the program as ineffective, but revealed few details. The report "doesn't say anything that would readily confirm or address whether there was a communications dragnet," Coppolino told Judge Walker Wednesday.

As part of the EFF's 2006 lawsuit, AT&T whistleblower Mark Klein described a secret room set up to monitor phone and internet communications on AT&T's networks for the U.S. National Security Agency.

While campaigning against President George W. Bush, Barack Obama had pledged that there would be "no more wiretapping of American citizens," but Obama's administration has continued to use many of his predecessor's arguments when it comes to warrantless wiretapping.

After the nearly two hours of arguments ended in court Wednesday, EFF lawyers said Obama had reneged on campaign promises by continuing to support the program. "It's not surprising; it is disappointing," said Kevin Bankston, an EFF attorney.