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Spied-On Lawyers Get Second Chance in NSA Lawsuit?

By Ryan Singel, Kevin Poulsen, Sarah Lai Stirland, Kim Zetter, and David Kravets

SAN FRANCISCO -- Two American lawyers accidentally given a Top Secret document showing they were eavesdropped on by the government when working for an Islamic charity in 2004 may yet get a court to rule on the government's secret surveillance program, despite being blocked from using that document to prove they were spied on.

Piecing together snippets from public statements from government investigations into Al Haramain, the Islamic charity they were working for, and a speech about their case by an FBI official, the duo's lawyers seemed to have convinced the judge in the case that they likely were spied on.

"There's a lot more meat on this bone than in the initial complaint, isn't there?" U.S. District Court Judge Vaughn Walker asked the government's lawyer Anthony Coppolino at the opening of the hearing in a San Francisco courthouse on Tuesday afternoon.

Being able to prove they were likely spied on is enough to restart the case for attorneys Wendell Belew and Asim Ghafoor, who once looked to have the most likely case to lead to a ruling on the legality of Bush's warrantless wiretapping program. That program started after the September 11, 2001 terror attacks, and involved various initiatives that peered into Americans phone and internet usage without court approval.

The turn of events for the duo came in front of the same judge who six months earlier ruled that he could look at the document in secret to see if the surveillance was illegal, but only if they could first find independent evidence they were spied on.

Judge Walker himself said at the time that hurdle was likely "insurmountable."

That July rulingdealt a blow to the government's use of the so-called 'state secrets privilege,' which the government can use to dismiss civil lawsuits it says endangers national security. Walker found in July that the redress provisions in the nation's spying law -- created by Congress -- trumped state secrets -- a common law privilege.

The duo's lawyers then refiled their suit, piecing together wording in charges brought by the FBI and the State Department, depositions from the attorneys about their conversations with the charity's Saudi-based director, and a speechby FBI Deputy Director John Pistole mentioning the charity had been a surveillance target.

Taken together, they prove spying, John Eisenberg, the plaintiff's lawyers told the court Tuesday.

"It is reasonable to infer without direct proof that there was surveillance of their conversations in March and April 2004," Eisenberg said.

The Justice Department's Coppolino wasn't convinced.

"They are trying to say A plus B plus C equals we were the ones surveilled," Coppolino said. "This is speculation, this is conjecture, this is not evidence."

Coppolino then angered Walker, saying that no one could ever prove they were spied on by the government unless the government admitted it.

"The only way to confirm ? whether of not someone has been the subject of surveillance ? is for the government to acknowledge it," Coppolino said.

Walker reacted viscerally that sweeping statement of government power over facts.

"That doesn't make any sense," Walker said. "That's an unreasonable position for you to take."

Walker did not rule from the bench or set another hearing date, though he did ask the plaintiff's counsel what he thought the next step should be.

Eisenberg said the next step was to let both parties see the secret document again and file briefs for Judge Walker, who can then rule on the legality of the surveillance.

The case is Al-Haramain v. Bush.

See Also:

• Top Secret: We're Wiretapping You
• NSA Snooped on Lawyers Knowing Spying Was Illegal, Suit Charges
• Nation's Soul Is at Stake in NSA Surveillance Case
• Wiretap Case: 'Drop It,' Say Feds
• Judge: President's 'State Secrets' Privilege Can't Shield ...
• NSA Judge: 'I feel like I'm in Alice in Wonderland'
• Analysis: Some Secret Documents Are Too Secret Even for Critical ...
• NSA-Spied-On Lawyers Get Day in Court and New Yorker Profile ...

Full post as published by Threat Level on December 02, 2008 (boomark / email).