Judge: Feds illegally wiretapped Islamic charity without search warrant in terror probe

Judge: Feds illegally wiretapped Islamic charity

SAN FRANCISCO — 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 have provided enough evidence to show “they were subjected to warrantless electronic surveillance.”

The judge ordered more legal arguments before deciding damages. Lawyers were seeking $1 million for each plaintiff plus attorney fees. The ruling also stands as repudiation of the now-defunct Bush administration’s Terrorist Surveillance Program.

At issue was a 2006 lawsuit filed by the Ashland, Ore., branch of the Saudi-based Al-Haramain Islamic Foundation 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.

Jon Eisenberg, lead lawyer for the plaintiffs, said the complicated 45-page ruling holds the Bush administration program was unconstitutional.

“We are gratified,” he said of the outcome of the 4-year-old case. “It has been a long time.”

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 marks 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.

Eisenberg called on the Obama administration to accept Wednesday’s ruling and forgo any appeals.

“We are reviewing it,” Department of Justice spokeswoman Tracy Schmaler said.

President Bush authorized the program shortly after 9/11 and ended it in 2007.

The program allowed National Security Agency officials to bypass the courts and intercept electronic communications believed connected to al-Qaida.

Generally, government investigators are required to obtain search warrants signed by judges to eavesdrop on domestic phone calls, e-mail traffic and other electronic communications.

The judge in June tossed out more than three dozen lawsuits against the nation’s telecommunications companies for allegedly taking part in the program. Congress in 2008 agreed on new surveillance rules that included protection from legal liability for telecommunications companies that allegedly helped the U.S. spy on Americans without warrants.

Walker previously upheld the constitutionality of the new surveillance rules. His ruling is being appealed.

Anthony Coppolino, the U.S. Department of Justice lawyer who has been in charge of the government’s case under both administrations, has never addressed the legality of the Bush administration program.

Coppolino has always argued the case should be tossed out in the name of national security and said the government risked exposing ongoing intelligence work if it was allowed to proceed.

The government argued that its “state secret privilege” trumped the Foreign Intelligence Surveillance Act, known as FISA, which requires investigators to seek wiretap approval from a special court that convenes behind closed doors.

Coppolino refused to even discuss whether such a secret warrant existed, arguing that to confirm or deny would threaten national security.

On Wednesday, the judge said the government was wrong and ruled it should be assumed investigators lacked a warrant.

“FISA takes precedence over the state secrets privilege in this case,” Walker wrote.

The Bush administration invoked the secrets privilege numerous times in lawsuits over various post-9/11 programs.

Holder has said Judge Walker was given a classified description of why the case must be dismissed so the court could “conduct its own independent assessment of our claim.”

The attorney general previously said the administration would respect the outcome of that process.

That is a departure from the Bush administration, which resisted providing specifics to judges handling such cases about what the national security concerns were.