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Rare Reversal Against Government Spying -- Judge Rules Feds Illegally Wiretapped Islamic Charity

The National Security Agency broke the law when it wiretapped Al-Haramain Islamic Foundation's phones, the U.S. District Court ruled Wednesday.
 
 
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A district court judge in San Francisco ruled on Wednesday that government investigators illegally wiretapped the phone conversations between an Islamic charity and its two American lawyers, in a rare reversal of the growing trend of federal warrantless surveillance practices. The National Security Agency (NSA) broke the law when it wiretapped Al-Haramain Islamic Foundation's phones, U.S. District Court Judge Vaughn Walker ruled, because it did so without a search warrant.

The government has not yet indicated whether it will appeal the decision in the four-year-old case, which touches upon a variety of tenuous legal subjects including "state secrets privilege" and questions of how the Bush administration's controversial Terrorist Surveillance Program functioned -- and how iterations of it may still operate today under the Obama administration.

For quite some time now, Justice Department lawyers argued that Al-Haramain and its lawyers could not prove it had been spied upon using unclassified information. And it refused to provide the court classified evidence, citing "state secrets privilege."

Government lawyers invoked the executive privilege -- for the first time since Obama has been in office -- by arguing that sharing classified information would compromise national security. This is particularly ironic because government officials accidentally gave the plaintiffs classified information that proved the existence of warrantless spying.

The plaintiffs' lawyers were able to prove the spying despite being unable to use the classified documents. And because the government refused to provide proof to the court that there was a warrant, the judge assumed there was never a warrant to speak of, despite what the court described as the government's "impressive display of argumentative acrobatics."

According to Kevin Bankston, a senior staff attorney at the Electronic Frontier Foundation (EFF), there are two major wins to be gleaned from Wednesday's ruling.

The first is that warrantless wiretapping violates the Foreign Intelligence Surveillance Act (FISA), which requires investigators to seek a warrant from a special court convened behind closed doors. In other words, not even the president and commander-in-chief can disregard FISA.

The second, Bankston says, is that "The decision is a strong rebuke to the Obama administration's position -- which it has disappointingly adopted from the Bush administration -- that any aspects of the NSA's terrorist surveillance were so secret that their legality couldn't even be debated in court."

Indeed, the protracted fight is a reminder that the current administration has not only not fulfilled Obama's campaign promises of reforming the PATRIOT Act's surveillance provisions, but it has also done virtually nothing to rein in NSA spying.

"So far the Obama administration's record on surveillance issues is just as poor as the Bush administration's, despite the fact that we were promised a new era of accountability and transparency," Bankston says.

In fact, many anti-surveillance advocates like Bankston believe that notwithstanding the Bush administration's public pronouncements that the Terrorist Surveillance Program ended in early 2007, many aspects of the program are still in effect.

The EFF has two cases pending in appeals court alleging that with the help of telecommunications companies, the NSA has been illegally collecting millions of Americans' e-mails and phone conversations, which now reside in NSA databases and in spy rooms at companies like AT&T.

"This dragnet surveillance scenario is still occurring," says Bankston. "When they say the Terrorist Surveillance Program is no longer operative, they're engaged in word games. The TSP was only ever what President Bush admitted -- the interception of international communications by people linked to terrorist organizations. We think TSP included that but the government also started to illegally intercept everyone's communications."

Three years after EFF brought its cases to court, the New York Times reported last year that the NSA was engaging in systemic "overcollection" of Americans' private e-mails and phone messages.

Despite Judge Walker's ruling this week, he is also responsible for a troubling ruling in one of the EFF cases now in appeals purgatory.

"He dismissed our suit that alleged that so many people had been surveilled because we hadn't alleged a particular grievance," Bankston says. "Which essentially leads the court to say that so long as the government illegally spies on everybody" -- rather than on a specific few -- "the court can never rule on whether it is in fact illegal."

This isn't just change we can't believe in -- it's change we're not supposed to see.