WASHINGTON — As a presidential candidate, then-Sen. Barack Obama declared that it was “unconstitutional and illegal” for the Bush administration to conduct warrantless surveillance of Americans. Many of his supporters said likewise.
But since Obama won the election, administration officials have avoided repeating that position. They have sidestepped questions about the legality of the program in congressional testimony. And in lawsuits over the program, they followed a strategy intended to avoid ever answering the question by asking courts to dismiss the lawsuits because the litigation could reveal national security secrets.
But the ruling on Wednesday by a federal judge that one instance of such spying had been “unlawful electronic surveillance” may force onto the table a discussion of how aggressively the Obama administration should continue to defend from judicial review the contentious Bush-era counterterrorism policy.
David Golove, a New York University law professor who specializes in executive power issues, said the ruling has highlighted the “awkwardness” of the Obama administration’s ambivalent stance toward its predecessor’s surveillance program.
“They have a lot of discomfort with the legal arguments the Bush administration made, but they’ve tried to avoid having to acknowledge too publicly those differences or to air them in court,” he said.
“Where does this leave the Obama administration? That’s a good question,” wondered Rep. Rush Holt, a New Jersey Democrat who is the chairman of the House Select Intelligence Oversight Panel and a critic of the warrantless wiretapping program.
The administration does not yet have to make any decision about what to do about the case because the judge, Vaughn Walker, has not yet entered a final order. He has given the plaintiffs until April 16 to decide whether to drop other claims and to submit a proposal for damages the government owes them.
But if the ruling stands, the Obama administration will have to decide whether to appeal it — thereby trying to wipe the decision off the books.
Decisions about appeals are usually made by Solicitor General Elena Kagan, but current and former officials said the deliberations were virtually certain to reach Attorney General Eric Holder and the White House.
There are some reasons the administration might appeal, legal specialists said. Among them, it may not want Walker’s narrow interpretation of the state secrets privilege to stand because it might influence other cases, and appealing on those narrow grounds would allow the administration to still avoid engaging on whether the program was legal.