[Infowarrior] - "Classified But Leaked" OK in wiretap court case

[Richard Forno]

Appeals Court Allows Classified Evidence in Spy Case
By David Kravets EmailFebruary 27, 2009 | 3:49:39 PMCategories:  
Surveillance

http://blog.wired.com/27bstroke6/2009/02/appeals-court-a.html

A federal appeals court dealt a blow to the Obama administration  
Friday when it refused to block a judge from admitting top secret  
evidence in a lawsuit 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.

The legal brouhaha concerns U.S. District Judge Vaughn Walker's  
decision in January 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. 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.

Absent intervention from the U.S. Supreme Court, the one-line decision  
(.pdf) by the 9th U.S. Circuit Court of Appeals means the lawyers'  
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.

"We're trying to establish a legal precedent: A rule that the  
president must comply with legislation passed by Congress," said Jon  
Eisenberg, the attorney for the two lawyers. "The president is not  
above the law. This case is important to establish a legal precedent."

The lawyers' suit looked all but dead in July when they were initially  
blocked from using the document to prove they were spied on. They were  
forced to return it to the government after it was declared a state  
secret.

But last month, 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. Without the document, the lawyers didn't have a case.

The Bush and the Obama administration's said the document's use in the  
trial was a threat to national security. The document at issue isn't  
likely to ever become public.

Walker's Jan. 5 order only allows lawyers in the case to view it, and  
they are forbidden to publicly discuss its contents.

Bush acknowledged the existence of the so-called Terror Surveillance  
Program in 2005. It authorized the NSA to intercept, without warrants,  
international communications to or from the United States that the  
government reasonably believed involved a member or agent of al-Qaeda,  
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 National Security Agency 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.

The Obama administration on Thursday urged Judge Walker, the same  
judge in the Al-Haramain case, to dismiss the EFF's challenge to the  
immunity legislation. Walker's decision is pending. The U.S.  
government had designated Al-Haramain a terror organization

The Justice Department declined comment.