CHICAGO — A federal judge recently declared the Bush administration’s warrantless wiretapping program unconstitutional, issuing the second federal ruling against the controversial practice.
But experts are skeptical the ruling will stand.
“I think that it’s more likely than not that the Justice Department will appeal it, and it will not by any stretch of the imagination survive the appeal,” said Aziz Huq, a law professor at the University of Chicago.
The recent decision is the second ruling warrantless wiretapping unconstitutional. The first decision finding it illegal in 2006 was struck down when the plaintiffs could not definitively prove they had been wiretapped.
Because classified information revealed in error confirmed that the plaintiff, an Islamic charity in Oregon, had been watched, the case cannot be struck down on those grounds.
But even if it survived appeal, Huq said the ruling is unlikely to affect the current wiretapping program.
“The ruling concerns the terrorism surveillance program that was discontinued at least three years ago and does not, as far as I can tell, implicate the current surveillance regime under the Foreign Intelligence Surveillance Act as amended in 2008,” he said.
The Foreign Intelligence Surveillance Act was created in 1978 to gather data on suspected threats to national security connected to foreign organizations. Since 9/11, FISA has been amended to expand the federal government’s surveillance powers.
“Whatever surveillance is being done, it’s largely being done through the amended FISA bill, giving the government more authority than it used to have and drafted in such a way that one can imagine the government using the powers under the statute to sweep up a lot of communications without individualized warrants,” Huq said.
Ed Yohnka, director of communications and public policy for the Illinois branch of the ACLU, said he’s uncertain whether the ruling will change anything.
The necessity of warrantless wiretapping is unclear in the first place, Yohnka said.
“The feds just simply never got turned down for a warrant when they requested one,” he said.
But whether the ruling means change or not, Yohnka said it sends a message about warrantless wiretapping.
“I think it’s hard to know what the long-term implications of this might be, but I think it is also difficult at the same time to understate the importance of a court stepping up and calling this activity for what it was, which was illegal spying.”
