Intellectual Property Law

Judge to Rule on Domestic Spying

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

A federal judge will rule on the merits of a legal challenge weighing whether a U.S. president may bypass Congress, as President George W. Bush did, and establish a program of eavesdropping on Americans without warrants.

U.S. District Judge Vaughn Walker ruled similarly in January and February, but entertained and rejected (.pdf) a second Obama administration challenge late Friday that the case was barred by the state secrets doctrine. The government said the case threatened to harm national security.

Absent intervention from the U.S. Supreme Court, the case is the only lawsuit likely to litigate the merits of a challenge to Bush's secret eavesdropping program adopted in the aftermath of the Sept. 11 terror attacks. A federal appeals court already rejected the Obama and Bush administration's bid to dismiss the case, despite government assertions the lawsuit might expose government secrets.

The Obama administration had threatened that it might disobey Walker's orders. However, Walker said the case would be litigated, even though the government said Walker had no authority to see the case through. The judge, in announcing he would decide the "merits" of the litigation, ruled the government must share classified data with opposing lawyers, who are gagged from disclosing its contents to the public.

"As both this court and the court of appeals have determined that this matter is properly before this court, the United States should now comply with the court's orders," Walker ruled.

The legal brouhaha concerns Walker's earlier decisions to admit as evidence a classified document allegedly showing that two American lawyers for a now-defunct Saudi charity were electronically eavesdropped on without warrants by the Bush administration in 2004. The lawyers ? Wendell Belew and Asim Ghafoor ? sued the Bush administration after the U.S. Treasury Department accidentally released the top secret memo to them.

The courts had ordered the document, which has never been made public, returned and removed from the case after the Bush administration declared it a state secret. But in January, Walker said the document could be used in the case because there was sufficient anecdotal evidence unrelated to the document that suggests the lawyers for the Al-Haramain charity were spied upon.

The document's admission to the case is central for the two former lawyers of the Al-Haramain Islamic Foundation charity to acquire legal standing so they may challenge the constitutionality of the warrantless-eavesdropping program Bush publicly acknowledged in 2005.

The so-called Terror Surveillance Program authorized the National Security Agency to intercept, without warrants, international communications to or from the United States that the government reasonably believed involved a member or agent of al-Qaida, or affiliated terrorist organization. Congress authorized such spying activity in July.

The Electronic Frontier Foundation claims the TSP went further, and accuses the nations' telecommunication companies of funneling all electronic communications to the NSA without warrants. However, as part of the spy bill approved in July, the government immunized the telcos from lawsuits accusing them of being complicit with the Bush administration.

Walker is also weighing a constitutional challenge to the immunity legislation, and could rule any day.

The Justice Department said it was reviewing the decision and considering its next step.

See Also:

• Appeals Court Allows Classified Evidence in Spy Case
• Obama Administration: Wiretapping Legal Challenge Must Die ...
• Thoughts of Storm Troopers Filling Spy Case
• NSA Judge: 'I Feel Like I'm in Alice in Wonderland'
• U.S. 9th Circuit Deals Setback to NSA Surveillance Victim
• House Panel to Ask for NSA Spying Probe
• Judge: 'Sufficient Facts' Exist That U.S. Spied on Islamic Charity ...

Full post as published by Threat Level on April 20, 2009 (boomark / email).