SAN FRANCISCO, Jan. 6, 2009
Judge Reinstates Lawsuit Over Wiretapping
Demands Review Of Classified Call Logs Which Purportedly Show Surveillance of Islamic Charity
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(AP / CBS)
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Domestic Surveillance
The debate over the Bush administration's controversial wiretapping program.
U.S. District Judge Vaughn Walker has previously thrown out the case brought by the U.S. branch of the now-defunct Al-Haramain Islamic Foundation, which claimed it has been the target of illegal wiretaps, which the charity discovered when the federal government accidentally turned over classified documents to the charity's lawyers.
The U.S. branch of the charity, which was based in Ashland, Ore., was forced to return the documents. When they brought their claim to court, the government refused to turn over the documents to the judge, saying that revealing their contents would compromise national security. Walker agreed, and in July tossed out the case.
However, Walker has now reversed himself, after lawyers for Al-Haramain produced transcripts of congressional testimony and public speeches of high-ranking government officials discussing the surveillance program.
In a 25-page ruling released Monday, Walker said there is enough primary evidence showing the charity may have been the target of government-tapped telephone calls that were done without court approval under the administration's so-called Terrorist Surveillance Program.
The Islamic group said that, according to congressional testimony by Treasury and Justice Department officials, al-Haramain was targeted by federal investigators as part of "Operation Green Quest” to track financing of terrorist activities.
While no purported link between the group and Osama bin Laden was ever discussed in that testimony, the Office of Foreign Assets Control alerted the charity in 2004 that they were considering designating Al-Haramain as a Specially Designated Global Terrorist (SDGT) organization based on "classified documents that are not authorized for public disclosure," and which they would not provide to them. In September 2004, a Treasury Department press release stated that there were "direct links" between the U.S. charity and Bin Laden.
Subsequent public statements and speeches by FBI personnel mentioned surveillance being conducted to make that terrorist determination. There was also testimony by CIA Director Michael Hayden and Director of National Intelligence Mike McConnell which discussed the ways in which telecommunications between the U.S. and overseas were intercepted by U.S. intelligence gathering equipment, which fell under FISA rules.
Now that the charity has shown - at least preliminarily - through government officials' public disclosures that it may have been the subject of wiretaps without warrants required under FISA law, the top secret document is now back in play in the lawsuit.
The suit accuses the government of listening in to telephone calls in early 2004 between a charity officer living in Saudi Arabia and two of his Washington lawyers.
The charity's officer, Soliman al-Buthi, claims he uncovered the alleged wiretapping when a Treasury Department official accidentally turned over a top secret call log to Al Haramain's lawyers.
Government lawyers in Washington couldn't be reached for comment late Monday.
In court papers, the government has argued that national security interests bar Al-Haramain's lawsuit. It also argued that allowing such a lawsuit would open a floodgate of litigation by people merely suspecting they were targets.
Walker did not accept the government's arguments:
" It appears from defendants’ response to plaintiffs’ motion that defendants believe they can prevent the court from taking any action … by simply declining to act. …Despite having previously turned over call logs which (according to al-Buthi) indicate wiretaps were employed, authorities have refused to confirm or deny any eavesdropping.
"The non-occurrence of the Attorney General’s action [in responding to requests for discovery] does not necessarily stop the process in its tracks as defendants seem to contend."
Walker said he would read the document in private and determine if it conclusively proves that the charity was the subject of eavesdropping done with a warrant.
"I feel reasonably confident that a simple glance at that document would tell anyone that our clients were surveilled," said Jon Eisenberg, Al-Haramain's lead attorney.
Walker said the government must make the document available within 14 days.
The judge also ordered the government to provide top security clearance to three of the charity's lawyers, including Oakland-based Eisenberg, so that they may not be hindered in litigating the case.
In 2007, the 9th U.S. Circuit Court of Appeals had barred the foundation lawyers from using the call log as evidence after the Bush administration argued such a move would harm national security interests.
But the appeals court sent the case back to Walker to determine if the administration's claim to state secrets privilege is trumped by the Foreign Intelligence Surveillance Act.
The act, known as FISA, requires government investigators to obtain a warrant from a secret court in Washington to conduct electronic eavesdropping of suspected terrorists inside the country.
Walker ruled that FISA does have precedence over the state secrets privilege and said the lawsuit could proceed.
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What nonsense that some muslim in Saudi Arabia can be wasting our tax dollars by suing our government. While if you kiss in public in that country they throw you in the klink or cut your head off. Where is this judge in San Fransico?
Posted by babooph
That would be an excellent beginning in reclaiming some dignity.