Court rules that warrantless surveillance suit can proceed

McClatchy NewspapersFebruary 27, 2009 

WASHINGTON — A federal appeals court on Friday allowed a lawsuit alleging that the U.S. illegally eavesdropped on two American attorneys and an Islamic charity in Oregon to proceed despite a last-minute plea from the Obama administration to delay the case.

The order, by the 9th U.S. Circuit Court of Appeals in San Francisco, means that U.S. District Judge Vaughn Walker can grant the plaintiff's lawyers access to top secret documents under secure conditions and allow them to litigate their case against the administration.

The Justice Department had argued that the lawsuit jeopardized national security, and the ruling puts the Obama administration in the awkward position of defending the Bush administration's secret warrantless surveillance program, which began shortly after the Sept. 11, 2001 terrorist attacks.

Unlike other lawsuits alleging warrantless surveillance, the plaintiffs are certain that they were targeted because in 2004 the government accidentally gave lawyers in the case documents detailing the spying.

The lawsuit, filed by Washington lawyers Wendell Belew and Asim Ghafoor and the now defunct Al Haramain Islamic Foundation chapter in Oregon, accuses the government of violating the Foreign Intelligence Surveillance Act, which requires domestic surveillance to be authorized by a secret court.

In 2004, the Treasury Department declared the Saudi-based charity an organization that supports terrorism and froze its assets. Former officials from the organization are challenging the designation in a separate lawsuit.

Jon Eisenberg, one of the lawyers for the plaintiffs, said he was elated by Friday's order, which he called "the best-case scenario."

Six weeks after the accidental release of the documents detailing the eavesdropping, the government demanded them back. Without access to them, Eisenberg said, "It would have been much, much harder for us" to justify the lawsuit.

Signaling that the Justice Department had no immediate plan to back down, department lawyers late Friday told the district judge that he didn't have the authority to override the executive branch's determination that the plaintiffs' lawyers had "no need to know" the information.

Instead, they said, the judge should review the documents himself in his chambers to determine the merits of the lawsuit. Before issuing any ruling on the record, they asked the court to give the department time to appeal.

If the judge was determined to grant access, the government lawyers demanded to be given notice so they could determine whether to withdraw the information from the court.

Eisenberg called the government lawyers' threat of taking the documents from the court's custody "astounding."

"That would be a shocking violation of the constitutional separation of powers — the sort of thing that just doesn't happen in America," he said.

The 2005 disclosure of the warrantless surveillance program provoked an outcry from civil-liberties groups and members of Congress, including some Republicans. The Bush administration had authorized the National Security Agency, which conducts electronic surveillance, to monitor Americans' international phone calls, e-mails and other electronic communications without court authorization when at least one party was suspected of supporting or engaging in terrorist activities.

At the time, administration officials asserted that the president had the power to authorize domestic eavesdropping without court oversight.

In 2007, the Bush administration disclosed that it had obtained approval for its domestic surveillance program from the FISA court and no longer would resort to warrantless wiretaps.

To this day, little is known about who was targeted or why, and in court filings, Justice Department lawyers said that's why they didn't want the case to proceed.

Earlier this month, the Obama administration said that it would be asserting the same state secrets argument in another lawsuit, provoking outrage from civil libertarians. In response to the outcry, Attorney General Eric Holder ordered a review of such cases.

"Not only would disclosure of information to plaintiffs' counsel be wholly improper because the NSA director has determined that counsel have no valid 'need to know,'" said Michael Hertz, the acting assistant attorney general, "but, in addition, even issuance of sealed orders in this case risks revealing classified information."

Eisenberg said his lawsuit doesn't seek to uncover details about the inner workings of the program.

"The broader purpose is to challenge President Bush's and Vice President Cheney's theory that in times of national emergency the president can disregard acts of Congress," he said. "I don't care how they did it. I don't care why they did it. I just want to hold them accountable."

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McClatchy Newspapers 2009

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