Wiretapping case may have its day in court

The Obama administration on Friday lost its bid to halt a lawsuit charging that President George W. Bush broke the law when he authorized warrantless spying on terrorism suspects, the only such case to make it to federal court.

A federal appeals court rejected the Justice Department’s bid to halt the lawsuit by a now-defunct Islamic charity over warrantless wiretapping. The failed attempt was the second time this month that Obama officials argued that the presidential “state secrets privilege” trumped federal law in national security matters, a position consistently maintained by President Obama’s predecessor. The administration said national security would be compromised if the lawsuit by the Oregon chapter of Al-Haramain Islamic Foundation went forward.

The U.S. 9th Circuit Court of Appeals’ decision could clear the way for a court to rule on whether the previous administration’s practice of warrantless wiretapping was legal. Under the Foreign Intelligence Surveillance Act of 1978, Congress created a special national security court to vet sensitive warrant requests, but Bush bypassed it in pursuit of terrorism suspects after the Sept. 11 attacks.


The government could seek an emergency injunction from the U.S. Supreme Court as a last resort to prevent pre-trial proceedings from going forward before U.S. District Judge Vaughn Walker in San Francisco. Walker had given the administration until Friday to present its position on evidentiary and procedural questions. It wasn’t clear whether the government met that deadline; a recording on the phone in Walker’s chambers said the judge was unavailable until next week.

Justice Department spokesman Charles Miller said the administration had no comment on the 9th Circuit ruling, including whether it would seek Supreme Court intervention.

The Obama White House has continued to defend Bush’s claims to expanded powers to shield controversial counter-terrorism actions from lawsuits, alarming civil rights advocates who had expected a change in policy with the new president.

“I think all of us are incredulous that the Obama administration seems to be taking the precise same extreme positions as the Bush administration,” said Jon Eisenberg, an Oakland lawyer representing Al-Haramain. “Maybe they just haven’t had enough time yet to get up to speed. But as the weeks pass and no change is in the offing, one becomes increasingly worried that we’re not going to see any change we can believe in with regard to the Obama administration’s approach to state secrets privilege.”

In another case challenging the presidential privilege, the Obama administration urged the appeals court on Feb. 9 to throw out a lawsuit about CIA clandestine operations in the alleged kidnapping and torture of terrorism suspects. A ruling on that case, Mohamed vs. Jeppesen DataPlan Inc., is pending. In both the Al-Haramain and Mohamed cases, all three judges on the 9th Circuit panels are appointees of Democratic presidents.

Earlier this month, Atty. Gen. Eric H. Holder Jr. ordered a review of all cases in which the government has fought off lawsuits by invoking the state secrets doctrine.

The American Civil Liberties Union and other groups have repeatedly attempted to take the government to trial over warrantless wiretapping but have been thwarted by federal court rulings that they lacked standing to sue unless their individual privacy rights had been violated.

Of more than 50 challenges to warrantless wiretapping, only in the Al-Haramain case has evidence emerged that names U.S. citizens subjected to surveillance.

The case stems from classified documents that the Bush administration accidentally sent to the charity’s Oregon chapter. Lawyers Wendell Belew and Asim Ghafoor, who represented the charity when it was being investigated by the Treasury Department, learned that their attorney-client discussions had been subject to eavesdropping by the National Security Agency.

The Bush administration declared the documents were state secrets and ordered them secured and available only to those with top national security clearances. In a 2007 ruling, the 9th Circuit upheld the president’s right to declare the documents confidential but sent the case back to Walker’s court to decide whether the 1978 surveillance law preempted the state secrets privilege.

Walker ruled in July that Bush couldn’t rely solely on the state secrets privilege to justify warrantless spying.

Recognized by the Supreme Court 54 years ago in U.S. vs. Reynolds, the privilege bars disclosure of information in court proceedings when “there is a reasonable danger that the compulsion of the evidence will expose military matters which, in the interest of national security, should not be divulged.”

The effect of Friday’s 9th Circuit ruling appears to leave it up to Walker, not the Justice Department, to decide whether lawyers representing the foundation who have recently acquired top security clearances should have access to the classified documents and be able to use them, perhaps under seal, to establish standing to sue.

Al-Haramain, based in Saudi Arabia, was a global network of charity offices that funneled aid to Muslims under siege in places like Bosnia and Chechnya.

The Saudi government closed down the foundation after the U.N. Security Council said it had ties to Al Qaeda and the U.S. Treasury Department froze its assets and branded it an operation supporting terrorism.