Bush's Wiretapping Goes to Court in San Francisco

by Bob Egelko

SAN FRANCISCO -- After years of wrangling over legal procedures, the lawyer for a defunct Islamic charity laid out his case Wednesday that former President George W. Bush's secret wiretapping program was illegal - an argument that an Obama administration attorney refused to discuss.

After years of wrangling over legal procedures, the lawyer for a defunct Islamic charity laid out his case Wednesday that former President George W. Bush's secret wiretapping program was illegal. (AFP/File/Tim Sloan)

"May the president of the United States break the law in the name of national security? ... We're asking this court to say, 'no,' " Jon Eisenberg, lawyer for the Al-Haramain Islamic Foundation, told a federal judge in San Francisco.

Neither the president's constitutional powers as commander in chief nor Congress' authorization to use military force against terrorists after Sept. 11, 2001, entitled Bush to override a 1978 law requiring court approval for electronic surveillance of suspected terrorists, Eisenberg argued.

He cited presidential candidate Barack Obama's declaration in 2007 that "warrantless surveillance of American citizens in defiance of (the 1978 law) is unlawful and unconstitutional."

Al Haramain, an Oregon group that the government declared to be a terrorist organization in 2004, and which has since gone out of business, sued the Bush administration in 2006. It claimed that federal authorities had illegally listened in on its lawyers' phone calls and is seeking damages. Its officials denied the group was a terrorist outfit.

Chief U.S. District Judge Vaughn Walker, who has rebuffed Bush and Obama administration requests to dismiss the suit, did not reveal his views on the legality of the program. But he told a government lawyer that Al-Haramain had presented strong evidence that it had been wiretapped and had the right to sue.

The hearing was the first in California, and the second in the nation, to address the constitutionality of Bush's post-Sept. 11 order to intercept communications between Americans and suspected foreign terrorists without a warrant.

Since the New York Times revealed the program, and Bush confirmed it, in December 2005, would-be plaintiffs have struggled to prove they were targeted for surveillance and were entitled to challenge it.

A federal judge in Michigan declared the program unconstitutional in 2006, in the only other instance in which the issue has gone to court. But an appeals court threw the case out because none of the plaintiffs could show that their calls had been intercepted.

Al-Haramain's lawsuit is unique because the charity was inadvertently sent a classified document in 2004 that reportedly showed that its lawyers had been wiretapped.

Nevertheless, said a lawyer for Obama's Justice Department, Al-Haramain can't prove it was subject to electronic surveillance, because the document - which the group returned to the government, at officials' request - and virtually everything else about the program are secrets.

People can't sue over a confidential government program "based on speculation," said Justice Department attorney Anthony Coppolino.

A ruling on the legality of the program "is simply inappropriate," he told Walker, and even a decision on whether Al-Haramain has the right to sue would reveal information about "intelligence sources and methods."

Walker, however, has already ruled that public statements by Bush administration officials indicated that the Islamic organization had probably been wiretapped.

The judge told Coppolino that Al-Haramain "has presented a substantial array of evidence" that indicated it had been subject to electronic surveillance.

Walker did not say what he would do next. He could limit his ruling to whether Al-Haramain has the right to sue, and allow either side to appeal. Or he could decide whether Bush's program violated Al-Haramain's rights.

� 2009 Hearst Communications Inc.