Islamic charity wins right to sue U.S. over wiretapping - Mercedes-Benz Forum

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Islamic charity wins right to sue U.S. over wiretapping

A defunct Islamic charity in Oregon that says it was illegally wiretapped by federal authorities can pursue its lawsuit challenging President Bush's clandestine eavesdropping program, a federal appeals court ruled Friday.

The Ninth U.S. Circuit Court of Appeals in San Francisco rejected arguments by the Bush administration that Al-Haramain Islamic Foundation's lawsuit should be dismissed on the grounds that the warrantless surveillance program was a state secret.

"There has been a cascade of acknowledgments and information coming from the government, as officials have openly, albeit selectively, described the contours of this program," a three-judge panel said in a unanimous opinion.

But the court concluded that while the program itself is not a secret, a crucial document inadvertently released to the plaintiffs in 2004 is - and that Al-Haramain's attorneys, who once had the document but returned it to the government, would not be allowed to reconstruct its contents from memory.

The appeals court said the plaintiffs can pursue a claim that the wiretapping violated the 1978 U.S. Foreign Intelligence Surveillance Act and that the law preempts the government's state secrets privilege.

The appeals court sent the case back to U.S. District Judge Vaughn Walker in San Francisco for further proceedings.

"We're still alive. And not only are we still alive, we're kicking," said Jon Eisenberg, an attorney for the plaintiffs.

Al-Haramain, which was classified by the government as a terrorist organization affiliated with al Qaeda, and two of its attorneys said the records they were inadvertently given by the government in 2004 showed that the group's phones had been wiretapped earlier that year.

The organization returned the documents when federal officials learned of the error, then claimed the wiretapping violated both the 1978 federal law and constitutional restrictions on searches. With the records locked away, however, the government argued that Al-Haramain could not prove it had been subject to surveillance.

A federal judge in Oregon refused to dismiss the suit and ruled that the organization's lawyers could rely on their recollections of the document to try to prove that Al-Haramain's rights had been violated.

But in the appeals court ruling Friday, Judge Margaret McKeown said the attorneys wouldn't be able to reconstruct the document in that way, as that would be a "back door around the privilege and would eviscerate the state secret itself."

Justice Department spokesman Charles Miller said the government was pleased with the decision to keep the document a secret.

"The Ninth Circuit upheld the government's position that release of this information would undermine the government's intelligence capabilities and compromise national security," Miller said.

American Civil Liberties Union attorney Ann Brick said it was significant that the appeals court had sent the case back to Walker for a determination of "whether (the 1978 law) trumps the state secrets privilege."

Brick said, "The Bush administration's ever-increasing use of the state secrets privilege to thwart holding it accountable for its illegal conduct remains deeply troubling."

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