Spying on Americans gets its day in court

by Mark Follman

The Supreme Court's decision in Hamdan v. Rumsfeld in late June, striking down the Bush administration's secret military tribunals in the war on terror, was the most uplifting moment in American politics in at least three years. In a commanding rebuke to the Bush-Cheney war on terror -- and the clandestine run on executive power upon which it relies -- the Court affirmed that Congress never gave the White House a "blank check" to wage war free of oversight and accountability.

Adding to the momentum of that landmark judicial check, in San Francisco today a federal judge delivered another blow to the administration's draconian tactics. U.S. District Chief Judge Vaughn R. Walker denied the administration's request to throw out a lawsuit against AT&T alleging that the telecom giant collaborated with the National Security Agency in illegal spying on Americans. Even acknowledging the existence of such a program via a court case, government lawyers had argued, would cause grave harm to national security. They stuck to that argument despite the fact that domestic surveillance under the Bush administration had been covered for months by every major media outlet on the planet, and had been spoken of publicly by top Bush officials and the president himself.

Then again, mind-boggling logic deployed on behalf of the Bush-Cheney doctrine is not something unfamiliar -- and perhaps is inextricable, given the lengths to which the White House has gone to seize unilateral power. As I reported in Salon in late June, the administration has invoked the "state secrets" privilege on a scale never before seen -- and until now with dramatic success -- using it as a wide-ranging weapon in the battle to cover up CIA abductions, brutal prisoner interrogations and spying on Americans. Today, following the Hamdan decision, the Bush-Cheney veil of secrecy was pulled back another inch. Though indeed there may still be miles to go, Walker's ruling is another hopeful moment along the way. "The compromise between liberty and security remains a difficult one," Walker acknowledged in his ruling. "But dismissing this case at the outset would sacrifice liberty for no apparent enhancement of security."

Bush was absolutely right when he said the battle against radical Islamic terrorism would not be easy. But Walker's ruling points to how that battle should properly be fought -- with the utmost possible scrutiny of how America defends itself against its enemies, so at the same time it can defend the liberties those enemies would be delighted to see destroyed.