Intellectual Property Law

Judge Urged to Declare Bush Spy Program Illegal

By David Kravets

A lawsuit weighing whether a sitting U.S. president may create a spying program to eavesdrop on Americans? electronic communications without warrants or congressional authorization took another turn Thursday as a federal judge was asked to answer that question with a “no.”

The nearly 5-year-old case, despite its tortured procedural history, is the furthest along in challenging the Bush administration’s warrantless, electronic surveillance program adopted in the wake of the September 11 terror attacks.

The case was brought by two former American lawyers for a now-defunct Saudi charity. They allege some of their 2004 telephone conversations to Saudi Arabia were siphoned to the National Security Agency without warrants. The allegations were based on classified documents the government accidentally mailed to the former Al-Haramain Islamic Foundation lawyers.

After a mountain of paperwork, a trip to the appellate courts and countless hearings, U.S. District Judge Vaughn Walker ruled last month the lawyers must make their case without the documents, which both the Bush and Obama administrations claimed were a state secret. So on Thursday, counsel for those lawyers submitted a 41-page brief to Judge Walker, citing a bevy of circumstantial evidence, that they claim shows the two charity lawyers were unlawfully spied upon.

The evidence presented (.pdf) includes speeches by government officials discussing an investigation that concluded with the listing of al-Haramain as a terror organization to the FBI’s public disclosure that it monitored Al-Haramain officials.

Jon Eisenberg, an attorney for the al-Haramain lawyers ? Wendell Belew and Asim Gafoor, urged Walker to order the government to disclose whether the alleged surveillance “was authorized by a warrant.”

Eisenberg said the point of the lawsuit was to prevent future presidents from adopting a so-called Terror Surveillance Program, which was President George W. Bush’s once-secret warrantless wiretapping program disclosed in 2005 by The New York Times. Bush said his war powers granted him the power to create the TSP program.

In his motion to Judge Walker, he said the government has “charged plaintiffs with having links to al-Qaeda, putting plaintiffs squarely within the scope of the TSP, which targeted for warrantless surveillance persons and entities suspected of links to al-Qaeda. It would be surprising if defendants had not conducted TSP surveillance of persons thought to have links to al-Qaeda.”

A haring was set for September 1.

In July 2008, Bush signed legislation authorizing the type of surveillance at issue in this case ? allowing the warrantless monitoring of Americans’ electronic communications if they are communicating overseas with somebody the government believes is linked to terrorism.

Then-Sen. Barrack Obama voted for that legislation, which also immunized the nation’s telecommunication companies from lawsuits charging them with being complicit with the Bush administration’s warrantless, wiretapping program. That legislation nullified a lawsuit against the telecoms. That case is on appeal.

See Also:

• Appeals Court Allows Classified Evidence in Spy Case
• Obama Dares Judge to Order Release Of NSA Spy Document
• Showdown in NSA Wiretap Case: Judge Threatens Sanctions Against …
• Thoughts of Storm Troopers Filling Spy Case
• NSA Judge: ‘I feel like I’m in Alice in Wonderland’
• Obama Administration: Wiretapping Legal Challenge Must Die …

Full post as published by Threat Level on July 09, 2009 (boomark / email).