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Judge Rejects Bush's Stance On Wiretaps

George Bush's use of "state secrets" privilege criticized; warrantless wiretapping, surveillance, spying, TSP, NSA, FISA
AP
A federal judge said that President Bush does not have the constitutional authority to overstep the law establishing the government's ability to conduct warrantless wiretaps on American citizens.

U.S. District Court Judge Vaughn Walker on Wednesday said that when Congress passed the Foreign Intelligence Surveillance Act in 1978 it established the "exclusive" means for engaging in wiretaps, and that the president in his capacity as commander in chief could not evade that law.

At the same time, Judge Walker barred the U.S. branch of the now-defunct Al Haramain Islamic Foundation, an Islamic charity based in Ashland, Calif., from using a top secret document to push forward its lawsuit challenging the government's surveillance of that group.

He gave the foundation 30 days to refile its lawsuit with other evidence proving it was a surveillance target.

The Al Haramain's lawyers had claimed federal officials illegally eavesdropped on their telephone calls without court approval under the administration's so-called Terrorist Surveillance Program.

At the heart of the challenge was a top secret call log that the Treasury Department accidentally turned over to Al Haramain's lawyers, who say it showed government terrorist hunters listened to their phone conversations with foundation officials living in Saudi Arabia.

Al Haramain lawyer Jon Eisenberg last year told Walker that the lawsuit is dead without the use of the call log to prove illegal surveillance.

But several public disclosures about the Bush administration surveillance program in general and about the charity's role in particular since then could help Al Haramain lawyers prove their case, Eisenberg said after the ruling was issued late Wednesday.

Government lawyers did not immediately return a call for comment.

Last year, the 9th U.S. Circuit Court of Appeals also barred the foundation lawyers from using the log as evidence after the Bush administration invoked the so-called state secrets privilege, arguing that to do so would harm national security interests.

But the appeals court sent the case back to Walker to determine if the privilege is trumped by the Foreign Intelligence Surveillance Act. The act, known as FISA, was passed by Congress in 1978 and requires government investigators to obtain a warrant from a secret court in Washington to conduct electronic eavesdropping of suspected terrorists inside the country.

Walker did rule that FISA does trump the state secrets privilege:

"Congress included in the FISA bill a declaration that the FISA regime, together with the Omnibus Crime Control and Safe Streets Act of 1968 … were to be the "exclusive means" by which domestic electronic surveillance for national security purposes could be conducted. … This provision and its legislative history left no doubt that Congress intended to displace entirely the various warrantless wiretapping and surveillance programs undertaken by the executive branch and to leave no room for the president to undertake warrantless surveillance in the domestic sphere in the future.
However, Walker still barred Al Haramain's lawyers from using the National Security Agency call log they accidentally received.

While conceding Walker's ruling was a setback for his client, Eisenberg contended the government also suffered a loss when Walker ruled that FISA trumps the government's ability to invoke the so-called state secret privilege, as it did in the Al Haramain case.

"The broader picture is that this is a big loss for the government," Eisenberg said.

That aspect of Walker's ruling could boost some 40 other cases pending against telecommunication companies that allegedly cooperated with the government's warrantless wiretapping program. The government is also invoking the state secrets privilege as it seeks to toss out those lawsuits.

Congress, however, is scheduled next week to vote on whether to grant the companies legal protection from those lawsuits.