Court Ruling on Wiretap Is a Challenge for Obama

As a presidential candidate, Senator Barack Obama (D-IL) 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 President 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 March 31 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 had 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.