Bush Administration Faces New Challenges to Spying Powers

A federal judge in San Francisco is asked to strike down Congress' grant of retroactive immunity for domestic wiretapping, and to allow a lawsuit over monitoring of the Al-Haramain Islamic Foundation.

by Carol J. Williams

A federal judge who earlier rejected Bush administration claims that it was exempt from laws governing domestic surveillance was asked Tuesday to strike down an act of Congress that grants retroactive immunity for illegal wiretapping.

In a separate challenge of presidential power over national security affairs, lawyers for the now-defunct Al-Haramain Islamic Foundation asked the same judge in San Francisco to allow them to sue for illegal monitoring by the National Security Agency.

U.S. District Judge Vaughn Walker ruled in July that President Bush couldn't rely solely on state secrets privilege to justify warrantless spying.

Federal courts have tended to uphold Bush administration claims to broad wartime powers to protect the nation from terrorism, so Walker's decision offered civil libertarians a new chance to convince the courts that the president abused his powers in bypassing a special court that authorizes domestic spying.

The court created by the 1978 Foreign Intelligence Surveillance Act wasn't consulted before Bush ordered surveillance of Al-Haramain, a global charity suspected of Al Qaeda ties. Nor did the administration seek a warrant for NSA scrutiny of the phone and e-mail records of millions of U.S. telecommunications customers.

After the American Civil Liberties Union sued, alleging rights violations, Congress enacted the FISA Amendments Act to shield the telecom companies from the lawsuits.

In a class action against AT&T, the Electronic Frontier Foundation asked Walker to rule the FISA Amendments Act unconstitutional, saying that it violated individual privacy rights and granted excessive latitude for the attorney general to decide the legal responsibility of carriers that gave data to the NSA.

Justice Department lawyers reminded Walker that the congressional action was intended to shield the telecom carriers from liability for complying with government orders, and urged the judge to dismiss both challenges.

The ACLU action alleging that Bush overstepped his powers was dismissed by the Supreme Court in February, when the justices said that the rights group had failed to prove actual privacy violations.

In the Al-Haramain case, Oakland attorney Jon B. Eisenberg submitted what he said was abundant evidence that his clients' rights were violated, even without relying on evidence that the government had accidentally disclosed to them and then rescinded and sealed.

The U.S. 9th Circuit Court of Appeals late last year rejected the Al-Haramain assertion that it was illegally wiretapped, but sent back to Walker the issue of whether FISA preempted government state secrets privilege claims. Walker ruled that it did.

In questions submitted to the lawyers ahead of Tuesday's hearings, Walker seemed to look askance at the government's argument that allowing the lawsuits to go to court would reveal national security policy to potential enemies.

Walker's rulings aren't expected before Bush leaves office, bequeathing the battle over the reach of presidential powers to Barack Obama.

"They would want to get rid of these cases, to move on," Pepperdine University law professor Douglas W. Kmiec said of the incoming administration. "But I also think there will be a proper impulse within the Obama Justice Department to get the law right. It's one thing to have a clean worktable, and another to have a clean worktable where the laws have been brushed to the floor and all lie broken and scattered."