Accountability Avoidance

[Commentary] By a 6-to-6 vote last month, the United States Court of Appeals for the Second Circuit cleared the way for a legal challenge against a dubious legacy of the George W. Bush administration: the wiretapping of Americans’ international communications without a warrant or adequate judicial supervision in antiterrorism investigations.

The tie decision, which allowed an earlier ruling to stand, was a well-deserved setback to the Justice Department’s accountability avoidance strategy. This Catch-22 says that because the wiretaps are secret, no one knows for certain whether they have actually been tapped, and that means no one has a right to sue the government. We hope the Obama administration does not appeal to the Supreme Court, and allows the legal challenge to go forward. Given its dismal record on this matter, we are not holding our breath.