Judge Rejects Obama DOJ Argument in Islamic Warrantless Wiretapping Case

Human Rights

SAN FRANCISCO (AFP) -- A federal judge rejected the U.S. government's argument that it was immune from prosecution on national security grounds in a lawsuit by an Islamic charity that claims it was the victim of warrantless wiretapping.

Though District Judge Vaughn Walker delayed any final decision on the case until September at the earliest, he told the attorney for the U.S. branch of the al-Haramain Islamic Foundation to draft a motion that would be used to rule against the U.S. government in the case.

Al-Haramain attorney Jon Eisenberg said after a one-hour court hearing that he intends to use the case to challenge the use of warrantless wiretapping carried out under former president George W. Bush, and to question why the administration of President Barack Obama has refused to change course in this case.

The U.S. government has alleged that the al-Haramain charity, which is based in Saudi Arabia, is a front for terrorism.

After the September 11 attacks, Bush secretly authorized the National Security Agency to eavesdrop on calls and email between the United States and abroad in cases that federal agents deemed may have a terror link, potentially picking up Americans in the sweep.

The wiretaps proceeded without permission from a special court set up to watch over government wiretapping operations inside the United States, as provided for under the Foreign Intelligence Surveillance Act (FISA) of 1978. The program caused public outcry when it was revealed in 2005.

The government inadvertently turned over secret phone logs to al-Haramain's attorneys showing that the National Security Agency had wiretapped its conversations without obtaining a warrant.

Al-Haramain returned those logs, but the Islamic organization sued, and now claims it needs the logs back to prove it was the victim of illegal wiretapping.

Judge Walker in January ordered the government to devise a system that would allow al-Haramain's lawyers to secretly review the documents similar to a process used with attorneys for Guantanamo Bay prisoners, but U.S. officials have refused to comply.

A few hours earlier in a related case, Walker threw out lawsuits against U.S. telecommunications companies for participating in the Bush administration's warantless electronic eavesdropping program.

Congress passed legislation last year retroactively protecting the companies from such lawsuits.

Two rights groups, the Electronic Frontier Foundation (EFF) and the American Civil Liberties Union (ACLU) -- which represents 46 plaintiffs in the case -- plan to appeal the decision, arguing that FISAAA is unconstitutional.

"We're deeply disappointed in Judge Walker's ruling today," said EFF Legal Director Cindy Cohn.

"By passing the retroactive immunity for the telecoms' complicity in the warrantless wiretapping program, Congress abdicated its duty to the American people," opined EFF attorney Kurt Opsahl.

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