The courts and NSA snooping.

The law, lawyers, and the court.
July 21 2006 4:00 PM

The Judiciary Strikes Back

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

(Continued from Page 1)

Of course, the ruling is by no means an unqualified victory for EFF. Walker has certified the state-secrets question for immediate appeal, so before the case can proceed, his ruling will be examined by the 9th Circuit—which recently held that the state-secrets privilege should receive "utmost deference." And even if the ruling survives that appeal, the Justice Department would likely go to the Supreme Court before allowing the case to proceed. Walker also noted that legislative developments could change the course of the litigation, a reference to Arlen Specter's proposed wiretapping bill, which would sweep EFF's case out of Walker's courtroom and into the Foreign Intelligence Surveillance court.

But Walker's ruling actually makes it less likely that Specter's bill will prevail. Specter's premise is that regular courts cannot handle these extremely secret and sensitive matters. Walker punctured that myth of secrecy in his observation that the administration has discussed the surveillance program at length, and in his argument that litigation touching on the basic facts of the program is unlikely to change the way a terrorist works. In a gesture of good faith, he has suggested appointing a special expert—someone with a top security clearance and intelligence experience—to assist him in evaluating what can and cannot be introduced in court.

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The real significance of the case exceeds the NSA wiretapping story and the use of state secrets. Walker's opinion is a stirring defense of the role of the courts, even in times of war. Quoting the Supreme Court's decision in Hamdi v. Rumsfeld, he reminds us, "Whatever power the United States Constitution envisions for the Executive in its exchanges with other nations or with enemy organizations in times of conflict, it most assuredly envisions a role for all three branches when individual liberties are at stake." The president and Congress seem to have forgotten that lately; Judge Walker has reminded them.

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