By The Associated Press
April 1, 2010
DOJ Bush wiretapping program takes hit in Calif rulingIn a repudiation of the
Bush administration’s now-defunct terrorist surveillance effort, a federal judge
ruled Wednesday that government investigators illegally wiretapped the phone
conversations of an Islamic charity and two American lawyers without a search
U.S. District Court Judge Vaughn Walker said the plaintiffs provided enough
evidence to show "they were subjected to warrantless electronic surveillance"
by the National Security Agency.
The judge’s 45-page ruling focused narrowly on the case involving the Al-Haramain
Islamic Foundation, touching vaguely on the larger question of the program’s
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,"
President Bush authorized the surveillance program shortly after 9/11, allowing
NSA officials to bypass the courts and intercept electronic communications believed
connected to al-Qaida.
Generally, government investigators are required to obtain search warrants
signed by judges to eavesdrop on domestic phone calls, e-mail traffic and other
At issue Wednesday was a 2006 lawsuit filed by the Ashland, Ore., branch of
the Saudi-based foundation and two American lawyers Wendell Belew and Asim Ghafoor.
Belew and Ghafoor claimed their 2004 phone conversations with foundation official
Soliman al-Buthi were wiretapped without warrants soon after the Treasury Department
had declared the Oregon branch a supporter of terrorism. They argued that wiretaps
installed without a judge’s authorization are illegal.
It was the last active case pending before a trial judge challenging the wiretapping
program that 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
The plaintiffs were seeking $1 million each, plus attorney fees in the case.
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 insisted it came to the decision differently.
Holder’s effort to stop the lawsuit marked the first time the administration
has tried to invoke the state secrets privilege. Under the strategy, the government
can have a lawsuit dismissed if hearing the case would jeopardize national security.
Holder said Judge 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."
That was a departure from the Bush administration, which resisted providing
specifics to judges handling such cases about what the national security concerns
Holder previously said the administration would respect the outcome of Walker’s
Eisenberg called on the Obama administration to accept Wednesday’s ruling and
forgo any appeals.
"We are reviewing it," Department of Justice spokeswoman Tracy Schmaler
In June, Judge Walker tossed out more than three dozen lawsuits against the
nation’s telecommunications companies for allegedly taking part in the 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.
His ruling is being appealed.
Anthony Coppolino, the U.S. Department of Justice lawyer who has been in charge
of the Islamic Foundation case under both administrations, has never addressed
the legality of the wiretap program.
Coppolino has always argued the case should be tossed out in the name of national
security and said the government risked exposing ongoing intelligence work if
the lawsuit were allowed to proceed.
The government argued that its "state secret privilege" trumped the
Foreign Intelligence Surveillance Act, known as FISA, which requires investigators
to seek wiretap approval from a special court that convenes behind closed doors.
Coppolino refused to even discuss whether such a secret warrant existed, arguing
that to confirm or deny would threaten national security.
On Wednesday, the judge said the government was wrong and ruled that it should
be assumed investigators lacked a warrant.
"FISA takes precedence over the state secrets privilege in this case,"
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 Tuesday to order government officials to
disclose if officials eavesdropped without warrants on electronic conversations
between 23 attorneys and their clients held at Guantánamo.
Lower courts had tossed out that request.