7:22 PM:A federal judge in San Francisco ruled today that the Bush administration illegally wiretapped phone calls of a now-defunct Islamic charity in 2004 without obtaining a warrant.
U.S. District Judge Vaughn Walker granted a summary judgment to the former Al-Haramain Islamic Foundation of Ashland, Ore., and said the group can now file a request for financial compensation.
The group was the American branch of Saudi Arabia-based Al-Haramain Islamic Foundation. The U.S. Treasury Department declared the foundation a terrorist organization in 2004 and froze its assets.
The wiretapping of phone calls between two of the foundation’s American lawyers and an Al-Haramain official in Saudi Arabia in 2004 was carried out by the Bush Administration as part of an anti-terrorist effort known as the Terrorist Surveillance Program.
The program was authorized by President George W. Bush in 2001 and was ended in 2007.
The foundation claimed the wiretapping violated the U.S. Foreign Intelligence Surveillance Act because federal officials failed to obtain a warrant from a secret FISA court that oversees wiretapping of foreign intelligence agents with the United States.
The Justice Department argued the case should be dismissed because it could endanger national security secrets, but Walker ruled in an earlier decision in 2008 that the FISA law and the procedures it established took precedence over the national security argument.
Walker said in today’s decision that the foundation presented adequate evidence from public documents and public statements by FBI and Treasury officials to show that the wiretapping had occurred.
He said government lawyers presented no evidence during the four-year-long case to refute the claim that the surveillance was done without a warrant.
Therefore, the judge said, the government “must be deemed to have admitted that no warrant existed.”
Walker wrote that the FISA law was “enacted specifically to rein in and create a judicial check for executive-branch abuses of surveillance authority.”
He said the government’s legal theory of “unfettered executive-branch discretion” had “obvious potential for governmental abuse and overreaching.”
The decision could be appealed to a federal appeals court and the U.S. Supreme Court. Justice Department spokeswoman Tracy Schmaler said, “We’re reviewing the ruling.”
The government’s defense in the lawsuit was begun under the Bush Administration and continued by the Obama Administration.
Jon Eisenberg, an Oakland lawyer representing the foundation, said, “In this ruling, the judge is saying to a former president and the current president that it’s illegal to violate the law.
“When the president violates an act of Congress, there are consequences,” Eisenberg said.
Eisenberg said that damages could amount to about $200,000 for each of three plaintiffs – the Oregon foundation and attorneys Wendell Belew and Asim Ghafoor of Washington, D.C. But he said the foundation is unlikely to be able to collect its share of the compensation since it is defunct and its assets are frozen.
The compensation would be fines of $100 per day for each plaintiff for each of 202 alleged days of wiretapping between February and September 2004, plus punitive damages of nine or 10 times that amount, Eisenberg estimated.
In addition, Walker’s ruling allows for attorney’s fees, which Eisenberg said would be for “thousands of hours” by seven lawyers over four years.
The Al-Haramain lawsuit, originally filed against Bush and other officials in federal court in Oregon in 2006, was one of about 45 lawsuits filed in various courts around the country to challenge the surveillance by the National Security Agency. The cases were all moved to Walker’s court for judicial efficiency.
Unlike the Al-Haramain lawsuit, however, most of the lawsuits were filed against telephone companies that allegedly aided the NSA rather than against the government.
In 2008, Congress amended the FISA law to give telephone companies retroactive immunity from being sued. Citing that amendment, Walker dismissed about three dozen lawsuits against telecommunications companies in 2009. That decision is being appealed.
The Al-Haramain lawsuit is also unusual in that it was originally based on alleged specific evidence of wiretapping.
The evidence, reportedly a top-secret phone log, was accidentally given by the Treasury Department to Al-Haramain lawyers in 2004.
The FBI later retrieved all copies of the secret document, which is now referred to in court filings only as the Sealed Document, and the attorneys were not allowed to cite it or refer to it.
After National Security Agency officials refused to allow Al-Haramain lawyers to see any other classified documents that could serve as evidence in the case, Walker invited the attorneys to try to prove their claim with public documents.
The public evidence included a 2007 speech to bankers and lawyers, posted on the FBI’s Web site, in which Deputy FBI Director John Pistole referred to the FBI’s use of “surveillance” in the 2004 investigation of the Al-Haramain subsidiary.
Walker wrote that the Al-Haramain plaintiffs had submitted “sufficient non-classified evidence … to establish the absence of any genuine issue of material fact regarding their allegation of unlawful electronic surveillance.”
11:51 AM: A federal judge in San Francisco ruled today that the Bush administration illegally wiretapped phone calls of a now-defunct Islamic charity in 2004 without obtaining a warrant.
U.S. District Judge Vaughn Walker granted a summary judgment to the former Al-Haramain Islamic Foundation of Ashland, Ore., and said the group can now file a request for financial compensation.
The foundation, which was the American branch of an Islamic charity, was designated a terrorist organization by the U.S. Treasury Department in 2004.
The wiretapping of phone calls between two of the foundation’s American lawyers and an Al-Haramain official in Saudi Arabia was carried out by the Bush Administration as part of its anti-terrorist program.
The group claimed that U.S. officials violated the Foreign Intelligence Surveillance Act by eavesdropping on the phone calls without obtaining a warrant.
Justice Department argued the case should be dismissed because it could endanger national security, but Walker ruled in an earlier decision that the procedures established under the surveillance law trumped the national security argument.
Walker said the foundation presented adequate evidence from public documents and statements by FBI and Treasury officials to show that the wiretapping appeared to have happened, and that government lawyers presented no evidence to refute the claim that the eavesdropping was done without a warrant.
Therefore, the judge said, the government “must be deemed to have admitted that no warrant existed.”
A Justice Department spokesman was not immediately available for comment, but the ruling is likely to be appealed.
