Wiretaps illegal, U.S. judge rules
It was a repudiation of a Bush administration antiterrorist program. Damages were not set.
SAN FRANCISCO - In a repudiation of the Bush administration's now-defunct Terrorist Surveillance Program, a federal judge ruled Wednesday that government investigators illegally wiretapped the phone conversations of an Islamic charity and two American lawyers without a search warrant.
U.S. District Court Judge Vaughn Walker said the plaintiffs provided enough evidence to show "they were subjected to warrantless electronic surveillance."
The judge's 45-page ruling focused narrowly on the Al-Haramain Islamic Foundation case, touching vaguely on the larger question of the program's legality.
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," Eisenberg said.
At issue was a 2006 lawsuit filed by the Ashland, Ore., branch of Saudi-based Al-Haramain 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 a whimper."
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 that 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 were.
Holder previously said the administration would respect the outcome of Walker's review.