Wednesday, September 23, 2009
Bush-era wiretapping goes on trial in San Francisco
Today's start of a court hearing on the federal government's post-9/11 wiretapping could herald a major step in undoing the years of constitutional mayhem of the Bush administration. A federal judge in San Francisco could decide that a now-defunct Islamic charity declared a terrorist organization in 2004 can proceed with its damage suit against the government for listening in on phone conversations with its attorneys without a warrant, according to the San Francisco Chronicle newspaper. The Bush and Obama administrations have tried, and failed, to get the case dismissed on national security grounds. U.S. Judge Vaughn Walker of the U.S. District Court for the Northern District of California has already ruled in the case that public statements by the government indicated that the Al-Haramain Islamic Foundation had probably been wiretapped, the Chronicle said. The case is only the second in the country to challenge the Bush-era wiretapping program, instituted in the aftermath of the Sept. 11 attacks on New York and Washington, D.C. In the first case, a federal judge declared the program unconstitutional but was overruled on appeal because the plaintiffs could not prove they had personally been wiretapped. But the Al-Haramain case is different in that the government already released documents apparently showing the charity had been wiretapped. The Bush administration said the documents had been improperly released, requested their return and declared them confidential. The foundation's attorney, Jon Eisenberg, argued before Walker that the president did not have the power to override a 1978 law requiring a special national security court to approve wiretapping of suspected terrorists, the Chronicle said. "May the president of the United States break the law in the name of national security? ... We're asking this court to say, 'no,'" Eisenberg argued at the hearing. Eisenberg also quoted now-President Barack Obama's statement while a candidate in 2007 that "warrantless surveillance of American citizens in defiance of (the 1978 law) is unlawful and unconstitutional." Walker told a government lawyer that the foundation had presented strong evidence that it had been wiretapped, the Chronicle said. The New York Times revealed the existence of the program in 2005 and Bush confirmed it. But Justice Department attorney Anthony Coppolino contended Al-Haramain's case had to be dismissed because the program, and everything connected to it, were protected secrets. Any ruling to the contrary would be "simply inappropriate," he argued, because it could reveal confidential information about "intelligence sources and methods," the Chronicle said.