[Infowarrior] - Ruling Blocks Challenge to Wiretapping

[Richard Forno]

Ruling Blocks Challenge to Wiretapping

By ERIC LICHTBLAU
Published: November 16, 2007

http://www.nytimes.com/2007/11/16/washington/16cnd-nsa.html?_r=1&hp&oref=slo
gin

WASHINGTON, Nov. 16 ‹ A federal appeals court said today that secrecy laws
forced it to exclude critical evidence about the National Security Agency¹s
domestic eavesdropping program from being used by an Islamic charity in a
lawsuit even though the mere existence of the program could no longer be
considered a ³state secret.²

The complex ruling was a victory for the Bush administration and signaled
trouble for civil rights groups that are trying to show that the
eavesdropping program was unconstitutional and to hold telecommunications
companies liable for carrying it out.

The Al-Haramain Islamic Foundation, a charity in Oregon, had perhaps the
best evidence of anyone that it had been a target of the wiretapping
program, based on a top secret document mistakenly given to the group in
2004.

But the ruling by the United States Court of Appeals for the Ninth Circuit,
based in San Francisco, found that evidence about the document could not be
introduced in court because it fell under the ³state secrets² privilege
invoked by the government. The court, reversing a lower court ruling, said
the trial judge had made ³a commendable effort to thread the needle² but
that its final ruling in allowing the evidence was flawed.

However, the appeals court split off from its ruling a separate claim made
by more than 40 groups against the telecommunications companies, and it has
yet to rule on whether those lawsuits were covered by the state secrets
privilege as well.

A lawyer for the group leading that part of the lawsuit, the Electronic
Frontier Foundation, said in an interview that he was heartened by the
appeals court¹s clear rejection of the government¹s claim everything
involved in the eavesdropping program should be considered a state secret.
That could bode well for the remaining piece of the case, said the lawyer,
Kevin Bankston.

Indeed, the appeals court spent most of its 27-page ruling explaining why
the eavesdropping program should not be considered a state secret. It listed
numerous public statements, including those by President Bush, former
attorney general Alberto R. Gonzales, and the director of the Central
Intelligence Agency, Michael V. Hayden, about details of the program. And it
said: ³In light of extensive government disclosures² about the Terrorist
Surveillance Program, ³the government is hard-pressed to sustain its claim
that the very subject matter of the litigation is a state secret.²

The judges on the panel were M. Margaret McKeown, Michael Daly Hawkins and
Harry Pregerson. Judges McKeown and Hawkins were nominated by President Bill
Clinton, which Judge Pregerson was a nominee of President Jimmy Carter.

In presenting the charity case before the lower court, its lawyers had also
argued that warrantless eavesdropping of telephone conversations between its
directors and lawyers violated the Foreign Intelligence Surveillance Act,
which established a secret court to issue top secret surveillance warrants
authorized by a judge, The Associated Press reported.

Today, the appeals court did keep the charity¹s lawsuit alive, if barely, by
sending the lawsuit back to a trial court in Portland, Ore., to determine if
that law governing the wiretapping of suspected terrorists trumps the state
secrets law.

The appeals court said that ³the F.I.S.A. issue remains central to
Al-Haramain¹s ability to proceed with this lawsuit.²
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