Judge Rules Islamic Group
Must Find Unclassified Evidence
to Continue Spying Lawsuit

By Julia Cheever

July 3, 2008

A federal judge in San Francisco ruled Wednesday that President Bush cannot use a state secrets argument to dismiss a lawsuit accusing the administration of violating the Foreign Intelligence Surveillance Act.

U.S. District Judge Vaughn Walker said the law, known as FISA, “preempts the state secrets privilege in connection with electronic surveillance for intelligence purpose.”

Walker issued the decision in a lawsuit filed against Bush and other administration officials by the now-defunct American branch of the Al-Haramain Islamic Foundation.

The group, formerly based in Ashland, Ore., claims phone calls between its American lawyers and one of its officers in Saudi Arabia were subject to illegal warrantless wiretapping in 2004.

Justice Department lawyers had asked Walker to dismiss the lawsuit on the ground that allowing it to proceed would reveal state secrets and endanger national security.

But Walker said Congress intended FISA to be “the exclusive means by which domestic electronic surveillance for national security purposes could be conducted.” He said the law therefore limits the executive branch’s ability to claim state secrets protection against lawsuits charging FISA violations.

The FISA law, first enacted in 1978, generally requires a search warrant to be issued by the secret Foreign Intelligence Surveillance Court when national security spying extends to Americans.

At the same time, Walker said Al-Haramain couldn’t pursue its lawsuit unless it can provide some preliminary evidence to show under the law that it was an “aggrieved party” subjected to illegal spying.

Citing a ruling by a federal appeals court last year, Walker said the group couldn’t use a top secret document accidentally released and then retrieved by the Treasury Department in 2004. The document is reportedly a phone log.

Walker gave the group 30 days to try to amend the lawsuit and come up with other, non classified preliminary evidence that it was spied upon.

Jon Eisenberg, an Oakland lawyer representing the plaintiffs, said, “It will be a challenge but I think we have a pretty good shot at it.”

Justice Department spokesman Erik Ablin said the agency “is reviewing the ruling.”

The Al-Haramain lawsuit is one of about 45 domestic surveillance lawsuits from around the country that were consolidated in Walker’s court. Most of the others were filed against telecommunications companies rather than the government. A FISA amendment to be voted on by the U.S. Senate next week could end the other lawsuits by giving the companies retroactive immunity from being sued.

Kurt Opsahl, a lawyer with the San Francisco-based Electronic Frontier Foundation, said Walker’s decision undermines arguments in favor of retroactive immunity.

Opsahl said, “So long as the telecom plaintiffs have unclassified evidence tending to established they were surveilled … FISA’s procedures kick into effect and the Bush Administration cannot unilaterally get rid of the telecom cases pursuant to the state secrets privilege.”

The foundation represents four Californians in a lawsuit claiming that AT&T Corp. illegally gave the National Security Agency telephone and Internet records of millions of Americans.

In arguing for dismissal of the Al-Haramain case at a hearing before Walker in April, government lawyers contended that Bush was not limited by the FISA law and that his constitutional role as commander-in-chief gave him separate authority to conduct warrantless surveillance.

Walker wrote in his ruling, however, that Congress intended FISA in 1978 to end alleged previous abuses by the executive branch in intelligence gathering.

The judge wrote, “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.”

The American branch of Al-Haramain was declared a Specially Designated Global Terrorist entity, subject to freezing of its assets, by the Treasury Department in 2004.

FCJ Editor

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