Jul 2, 2008 9:05 pm US/Pacific
SF Federal Judge Tosses Out Domestic Spying Suit
SAN FRANCISCO (AP) ―
A federal judge on Wednesday tossed out a lawsuit challenging a Bush administration surveillance program filed by a Saudi Arabia-based Islamic charity the U.S. government lists as a terrorist organization.
The U.S. branch of the now-defunct Al Haramain Islamic Foundation, which was based in Ashland, Ore., 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.
On Wednesday, U.S. District Court Judge Vaughn Walker barred the foundation from using the top secret document in the case and dismissed the lawsuit. He gave the foundation 30 days to refile its lawsuit with other evidence proving it was a surveillance target.
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, but still said Al Haramain's lawyers are barred 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.
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