[Infowarrior] - Court Says Bush Illegally Wiretapped Two Americans

[Richard Forno]

Court Says Bush Illegally Wiretapped Two Americans
	• By David Kravets
	• March 31, 2010  |
	• 1:26 pm  |

http://www.wired.com/threatlevel/2010/03/bush-spied/
A federal judge on Wednesday said the George W. Bush administration  
illegally eavesdropped on the telephone conversations of two American  
lawyers who represented a now-defunct Saudi charity.

The lawyers alleged some of their 2004 telephone conversations to  
Saudi Arabia were siphoned to the National Security Agency without  
warrants. The allegations were initially based on a classified  
document the government accidentally mailed to the former Al-Haramain  
Islamic Foundation lawyers. The document was later declared a state  
secret and removed from the long-running lawsuit weighing whether a  
sitting U.S. president may create a spying program to eavesdrop on  
Americans’ electronic communications without warrants

“Plaintiffs must, and have, put forward enough evidence to establish a  
prima facie case that they were subjected to warrantless electronic  
surveillance,” U.S. District Judge Vaughn Walker ruled, in a landmark  
decision. Even without the classified document, the judge said he  
believed the lawyers “were subjected to unlawful electronic  
surveillance” (.pdf) in violation of the Foreign Terror Surveillance  
Act, which requires warrants in terror investigations.

It’s the first ruling addressing how Bush’s once-secret spy program  
was carried out against American citizens. Other cases considered the  
program’s overall constitutionality, absent any evidence of specific  
eavesdropping.

The Obama administration’s Justice Department staunchly defended  
against the lawsuit, which challenged the so-called Terror  
Surveillance Program that Bush adopted in the aftermath of the 2001  
terror attacks. The classified document was removed from the case at  
the behest of both the Bush and Obama administrations which declared  
it a state secret.

The Justice Department said it was reviewing the decision.

Judge Walker likened the department’s legal tactics as “argumentative  
acrobatics.” He said counsel for attorneys Wendell Belew and Asim  
Gafoor are free to request monetary damages.

Their lawyer, Jon Eisenberg, said in a telephone interview that “the  
case is not about recovering money.”

“What this tells the president, or the next president, is, you don’t  
have the power to disregard an act of Congress in the name of national  
security,” Eisenberg said.


Because of the evocation of the states secret privilege, Walker had  
ruled the lawyers must make their case without the classified  
document. So Eisenberg amended the case and cited a bevy of  
circumstantial evidence (.pdf). Walker ruled that evidence shows that  
the government illegally wiretapped the two lawyers as they spoke on  
U.S. soil to Saudi Arabia. Walker said the amended lawsuit pieces  
together snippets of public statements from government investigations  
into Al-Haramain, the Islamic charity the for which the lawyers were  
working, including a speech about their case by an FBI official.

Under Bush’s so-called Terrorist Surveillance Program, which The New  
York Times disclosed in December 2005, the NSA was eavesdropping on  
Americans’ telephone calls without warrants if the government believed  
the person on the other line was overseas and associated with  
terrorism. Congress, with the vote of Obama — who was an Illinois  
senator at the time — subsequently authorized such warrantless spying  
in the summer of 2008.

The legislation also provided the nation’s telecommunication companies  
immunity from lawsuits accusing them of being complicit with the Bush  
administration in illegal wiretapping.

It’s uncertain whether the decision will withstand an appeal.

In 2006, for example a Detroit federal judge declared Bush’s spy  
program unconstitutional. But a federal appeals court quickly  
reversed, ruling that the plaintiffs did not have legal standing to  
bring a case, because they had no evidence to show that their  
telephone calls specifically were intercepted. The Supreme Court  
declined to review that ruling.