Thursday, April 1, 2010
Judge Rules Government Illegally Wiretapped Islamic Charity
From Staff and Wire Service Reports
In a repudiation of the Bush administration’s now-defunct Terrorist Surveillance Program, a federal judge ruled yesterday that government investigators illegally wiretapped the phone conversations of an Islamic charity and two American lawyers without a search warrant.
U.S. District Court Judge Vaughn Walker of the Northern District of California said the plaintiffs provided enough non-classified evidence to show “they were subjected to warrantless electronic surveillance.”
The judge’s 45-page ruling focused narrowly on the case of the Al-Haramain Islamic Foundation, touching vaguely on the larger question of the program’s legality.
Nonetheless, Al-Haramain lawyer Jon Eisenberg said the ruling had larger implications.
“By virtue of finding what the Bush administration did to our clients was illegal, he found that the Terrorist Surveillance Program was unlawful,” Eisenberg said.
At issue was a 2006 lawsuit by the Ashland, Ore. branch of the Saudi-based Al-Haramain Islamic Foundation and lawyers Wendell Belew and Asim Ghafoor.
The attorneys claimed their 2004 phone conversations with foundation official Soliman al-Buthi were wiretapped without warrants soon after the Treasury Department sought to declare the Oregon branch a supporter of terrorism. They argued that wiretaps installed without a judge’s authorization violated the Foreign Intelligence Surveillance Act.
Known as FISA, the act requires investigators to seek wiretap approval from a special court that convenes behind closed doors.
The Ninth U.S. Circuit Court of Appeals ruled in 2007 that the plaintiffs could not use a “top secret” call log indicating the group was targeted that had been inadvertently provided by the Treasury Department because it contained information regarding military intelligence activity and was protected under the common law state secrets privilege.
However, the panel also held that the subject matter of the litigation—the program itself—was not a privileged state secret because then-President Bush and other administration officials publicly acknowledged its existence on multiple occasions.
On remand, the plaintiffs amended their complaint to add 10 pages of information on public statements by the FBI and the Treasury Department that they relied on classified information, including “surveillance” information, to designate Al-Haramain as a terrorist organization associated with al-Qaida and Osama bin Laden.
Walker concluded that FISA took precedence over the state secrets privilege in the case, and that the new, non-classified evidence showed the plaintiffs were “aggrieved persons” subjected to unlawful electronic surveillance.
He granted the plaintiffs summary judgment after the government declined to present evidence that a FISA warrant was obtained, that the plaintiffs were not surveilled or that the surveillance was otherwise lawful.
The judge also ruled that the plaintiffs could not proceed against FBI Director Robert Mueller individually, and gave them until April 16 to decide whether to prosecute their remaining claims, or dismiss them in order to enter judgment on the FISA claim.
The case represented the last active case pending before a trial judge challenging the wiretapping program, which the government says ended in 2007.
“The ruling ends the case, but without the fireworks everyone expected,” George Washington University law professor Orin Kerr said. “It ended with a whimper.”
The plaintiffs were seeking $1 million each, plus attorney fees. Walker ordered more legal arguments before deciding on possible damages.
The ruling came after U.S. Attorney General Eric Holder said the lawsuit threatened to expose ongoing intelligence work and must be thrown out.
In making the argument, the Obama administration agreed with the Bush administration’s position on the case, but has insisted it came to the decision differently.
Eisenberg called on the current administration to accept the ruling and forgo any appeals.
“We are reviewing it,” Department of Justice spokeswoman Tracy Schmaler said.
Generally, government investigators are required to obtain search warrants signed by judges to eavesdrop on domestic phone calls, e-mail traffic and other electronic communications. President Bush authorized the surveillance program shortly after 9/11, allowing National Security Agency officials to bypass the courts and intercept electronic communications believed connected to al-Qaida.
Holder said Walker had been given a classified description of why the case must be dismissed so the court could “conduct its own independent assessment of our claim.” He also previously said the administration would respect the outcome of Walker’s review.
That was a departure from the Bush administration, which resisted providing specifics to judges handling such cases about what the national security concerns were.
Walker, however, based his decision solely on the non-classified evidence, he said, out of fairness to the defendants, who had refrained from submitting classified evidence.
Last June, Walker tossed out more than three dozen lawsuits against the nation’s telecommunications companies for allegedly taking part in the government’s surveillance program.
Congress in 2008 agreed on new surveillance rules that included protection from legal liability for telecommunications companies that allegedly helped the U.S. spy on Americans without warrants.
Walker previously upheld the constitutionality of the new surveillance rules. That ruling is being appealed.
The Bush administration invoked the secrets privilege numerous times in lawsuits over various post-9/11 programs.
In another wiretap case targeting the Bush tactics, the Center for Constitutional Rights asked the U.S. Supreme Court on Tuesday to order government officials to disclose if officials eavesdropped without warrants on electronic conversations between 23 attorneys and their clients held at Guantanamo.
Lower courts had tossed out that request.
The case is In re National Security Agency Telecommunications Records Litigation, 06-1791.
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