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April 22, 2009


Cindy Cohn

Thanks for continuing to follow the Al Haramain case, but I must take issue with this claim:

"So far, Walker hasn’t determined whether the government actually spied on the plaintiffs, but if the case ever reaches the merits, he could have the opportunity to rule on the constitutionality of the Bush administration’s warrantless wiretapping program, something no other pending case will get a chance to address."

The EFF's Jewel v. NSA case is aimed directly at the constitutionality of the NSA's warrantless wiretapping, as is another case called Shubert. Additionally, nearly all of the thirty-one currently pending cases against the telecommunications carriers raise constitutional claims, although they have the extra hurdle of the retroactive immunity law passed last summer. Nonetheless, all of those cases are clearly still pending.

Perhaps you are referring to the portion of the warrantless wiretapping that the Bush Administration openly admitted -- targeted warrantless wiretaps where one person is suspected of being involved in terrorism. That class of cases is different than Jewel v. NSA and the telco cases which address the constitutionality of dragnet surveillance of millions of nontargets as part of the warrantless wiretapping. But even so your assertion is still incorrect since targeted surveillance is claimed in the case still pending in the Multi-District Litigation before Judge Walker brought by the Center for Constitutional Rights on behalf attorneys and others involved in Guantanamo Bay defense cases.

Obviously this is a big and confusing set of cases, so I understand that it's hard to get it precisely correct in a short blog post, but I would hate for anyone to mistakenly think that only the Al Haramain case can address the constitutionality of the warrantless wiretapping.


Cindy Cohn
Legal Director
Electronic Frontier Foundation
(counsel in Jewel and co-lead coordinating counsel in the NSA wiretapping MDL)

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