Intellectual Property Law

DNI and AG Fear Court Ruling on Warrantless Wiretapping

By Kurt Opsahl

EFF and others have long suspected that one reason the White House and its allies have fought for telecom immunity so fervently has been their fear that a judicial ruling on the legality of telecoms' participation would lead to a ruling rejecting the legality of the Administration's warrantless wiretapping program itself.

Today, the Director of National Intelligence McConnell and Attorney General Mukasey confirmed as much in a letter opposing amendments to the FISA bill. The DNI and AG wrote that allowing a court to rule on the constitutionality of the Administration's arguments for warrantless wiretapping "is unacceptable." They argue that "the aim of the amendment appears to be an adjudication of the Government's prior actions," and that "by requiring a merits adjudication of the plaintiffs' constitutional claims" the proposed amendment "would significantly negate a major purpose of the retroactive liability protections" (emphasis added).

So there you have it — the Administration admits that the reason for telecom immunity is to avoid judicial scrutiny of their extremist view of Executive power under the constitution.

Why might they be so concerned? Because the Administration would lose. As we've noted, numerous third party legal experts, including former government officials and respected law professors, have concluded that the Bush Administration's constitutional argument (which the DNI and AG are now trying to avoid litigating) "fails to offer a plausible legal defense of the NSA domestic spying program."

Faced with the prospect of having a judge actually evaluate whether the John Yoo and David Addington theories of unlimited presidential power hold water, the DNI and AG now beg the Senate to sweep it under the rug.

Call your Senator today, and you can help put a stop to this cover-up.

Full post as published by Electronic Freedom Foundation - Deep Links on June 26, 2008 (boomark / email).