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Judge rejects state-secrets protection

Bush, Obama both contested wiretap suit

LOS ANGELES – In a repudiation of the Bush administration’s anti-terrorism surveillance program, a federal judge ruled Wednesday that the government violated federal law when it failed to seek warrants to spy on two lawyers working for an Islamic charity in Oregon.

U.S. District Judge Vaughn Walker rejected assertions by both Presidents George W. Bush and Barack Obama that their state secrets privilege shields them from lawsuits filed by American citizens investigated under a controversial domestic spying program launched after 9/11.

A Justice Department spokeswoman declined to say whether the administration would appeal.

Barring an appeal by the Obama administration, Walker’s ruling allows the lawyers for the now-defunct Al-Haramain Islamic Foundation to pursue monetary damages as “aggrieved persons” under the federal law protecting them from illegal surveillance.

Government investigators placed Al-Haramain under surveillance in the Sept. 11 aftermath without seeking a warrant from the court created by the 1978 Foreign Intelligence Surveillance Act, or FISA. The FISA court was accorded special protections to allow its judges to review in strict confidence sensitive national security matters cited in warrant requests.

The Bush administration, believing that its strategy for fighting terrorism justified bypassing the FISA statute, didn’t attempt to defend its wiretapping practices in the Al-Haramain case; rather it argued that the state secrets privilege meant the court had to dismiss the lawsuit.

In his 45-page ruling, Walker alluded to the “obvious potential for governmental abuse and overreaching inherent in the defendants’ theory of unfettered executive-branch discretion.”

Jon Eisenberg, the attorney representing the foundation and lawyers Wendell Belew and Asim Ghafoor, hailed the ruling out of San Francisco as rejecting the Bush administration’s claims to wield expanded powers in pursuit of terrorists and the Obama administration’s support of that posture.

Constitutional law experts noted that neither Bush nor Obama lawyers disputed that the foundation had been placed under warrantless surveillance.


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