Federal court finds warrantless wiretapping of lawyers illegal

In a repudiation of the Bush administration’s anti-terrorism surveillance program, a federal judge ruled Wednesday that the government violated federal law when it failed to seek warrants to spy on two lawyers working for an Islamic charity in Oregon.

U.S. District Judge Vaughn Walker rejected assertions by both Presidents Bush and Obama that their state secrets privilege shields them from lawsuits filed by American citizens investigated under a disputed domestic spying program launched after 9/11.

Government lawyers were reviewing the ruling, said Justice Department spokeswoman Tracy Schmaler, declining to say whether the Obama administration would appeal.

Barring an appeal, Walker’s ruling allows the lawyers for the now-defunct Al-Haramain Islamic Foundation to pursue monetary damages as “aggrieved persons� under the federal law protecting them from illegal surveillance.

Government investigators placed Al-Haramain under surveillance after Sept. 11, 2001, without seeking a warrant from the court created by the 1978 Foreign Intelligence Surveillance Act, or FISA. The FISA court was accorded special protections to allow its judges to review in strict confidence sensitive national security matters cited in warrant requests.

The Bush administration, believing that its strategy for fighting terrorism justified bypassing the FISA statute, didn’t attempt to defend its wiretapping practices in the Al-Haramain case. Rather, it argued that the lawsuit should be dismissed because allowing it to proceed would undermine national security.

The Obama White House surprised some civil libertarians when it decided to continue defending Bush’s claims to expanded powers to shield controversial counter-terrorism actions from lawsuits. Some advocates had expected Obama would change the policy

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.

In his 45-page ruling, Walker alluded to the “obvious potential for governmental abuse and overreaching inherent in the defendants’ theory of unfettered executive-branch discretion.� The judge also cited the government’s “impressive display of argumentative acrobatics� in rationalizing its actions.

“Defendants contend this is not a FISA case and defendants are therefore free to hide behind the [state secrets privilege] all facts that could help plaintiffs’ case. In so contending, defendants take a flying leap and miss by a wide margin,� the judge wrote.

Jon Eisenberg, the attorney representing the foundation and lawyers Wendell Belew and Asim Ghafoor, hailed the ruling out of San Francisco as rejecting the Bush administration’s claims to wield expanded powers in pursuit of terrorists and the Obama administration’s support of that posture.

Constitutional law experts noted that neither Bush nor Obama lawyers disputed that the foundation had been placed under warrantless surveillance.

“What comes across loud and clear in the opinion is that the government hasn’t made any attempt to deny the plaintiffs’ assertion that they were electronically surveilled� without a FISA court warrant, said Kara Dansky, a constitutional law professor at Stanford Law School.

“It’s hard to imagine that could be an oversight,� Dansky said, given the breadth of cases in which the state secrets privilege has been invoked.

Eisenberg’s clients brought suit in 2006 after receiving secret documents mistakenly sent to them in the course of a Treasury Department investigation of the Oregon chapter of the global charity, which at the time was suspected of having ties to Al Qaeda. The documents, later ruled confidential and secured by the court, made clear that Belew and Ghafoor’s attorney-client conversations had been subject to eavesdropping by the National Security Agency.

The foundation and its lawyers were required to make a case that they had been victims of illegal surveillance without reference to the secret documents, a burden of proof Walker said they had satisfied.

Walker’s ruling referred to a damage award formula Eisenberg said he proposed to “make it easy� for the administration to settle the case. The plaintiffs have asked for $100 a day for the 202 days for which they say they have indisputable evidence that they were under surveillance, or $20,200 per “aggrieved person.�

Even if Walker adds the usual tenfold maximum for punitive damages, it would cost the government less than $600,000 to settle, said Eisenberg, who has represented the foundation pro bono but could be awarded attorney’s fees if Walker so orders.

“This case is not about money,� Eisenberg said. “It’s about putting the brakes on the abuse of presidential power.�

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