Wiretap program almost lawsuit-proof

WASHINGTON – The Bush administration’s warrantless wiretapping program has a built-in feature the Justice Department believes may shield it from ever being challenged as unconstitutional: secrecy.

The administration has acknowledged it intercepted some U.S. telephone conversations without warrants as it hunted for terrorists. Whose calls? The government isn’t saying. And since only those who were spied on have grounds to sue, it’s almost impossible to mount a successful legal challenge.

A federal appeals court in Ohio dismissed one such challenge last month because the American Civil Liberties Union and other groups could not prove the government had listened to their conversations.

Unless the government decides to release information about its wiretaps – as part of a criminal case, for example – the Justice Department said Monday the constitutional question may never be answered.

A senior Justice Department official made the comments during a briefing before a hearing last week in San Francisco, where lawyers are trying to challenge the program’s legality.

Attorneys for an Islamic charity say they can prove just that. Because of a government mix-up, the Al-Haramain Islamic Foundation received what charity attorneys said was a National Security Administration log of calls intercepted between the charity and its lawyers. Armed with that information, the charity is challenging the program in a San Francisco court.

The Justice Department refuses to say whether the charity’s calls were intercepted, but it wants the case thrown out because defending it would require the government to disclose state secrets.

Asked whether the Justice Department saw any way someone could challenge the surveillance program, the official replied, “In the current context, no.”