Bush-Ordered Wiretaps Illegal, Judge Says

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the San Francisco Chronicle

Bush-Ordered Wiretaps Illegal, Judge Says

Bob Egelko

SAN FRANCISCO -- The Bush administration wiretapped a U.S.-based Islamic charity under an illegal surveillance program that was not authorized by Congress or the courts, a federal judge in San Francisco ruled today.

The ruling by Chief U.S. District Judge Vaughn Walker marked the first time that a court has found that the government illegally wiretapped an individual or organization since President George W. Bush authorized warrantless wiretapping of suspected foreign terrorists in 2001.

The government inadvertently sent a classified document in 2004 to the Al-Haramain Islamic Foundation, reportedly showing that two of its lawyers had been wiretapped. Several months after the surveillance began, the government classified Al-Haramain as a terrorist organization, a description its leaders called false.

The now-defunct charity, which was headquartered in Oregon, returned the document at the government's request and could not use it as evidence in a lawsuit it filed over the wiretapping. But Walker said today that Al-Haramain had established, through public statements by officials and nonclassified evidence, that the government had intercepted its calls without obtaining the court warrant required by a 1978 law.

Bush acknowledged in December 2005 that he had ordered the National Security Agency, after the terrorist attacks of Sept. 11, 2001, to intercept phone calls and e-mails between Americans and suspected foreign terrorists without a warrant. He claimed the power to override the 1978 law's requirement of advance court approval for all such surveillance.

Today, Walker said Bush had lacked that authority.

Under the argument advanced by the Bush administration, "executive branch officials may treat as optional ... a statute (the 1978 law) enacted specifically to rein in and create a judicial check for executive-branch abuses of surveillance authority," the judge said.

That "theory of unfettered executive-branch discretion" holds an "obvious potential for governmental abuse and overreaching," Walker said.

Walker's ruling dealt only with the Al-Haramain wiretapping, and not any other surveillance the government may have conducted under Bush's program. But Al-Haramain's lawyer, Jon Eisenberg, said the decision amounts to a finding that the entire program was illegal.

"Inherent in what Walker has done in this case is a determination that President Bush's program of warrantless surveillance was unlawful," Eisenberg said. "Everybody has to follow the law, including the president."

He said his clients, Al-Haramain and the two lawyers, would ask for the damages the law allows - $20,200 each, or $100 for each day of illegal surveillance - plus punitive damages and attorneys' fees.

The ruling was also a rebuff to President Obama. Although Obama had criticized Bush's surveillance program while running for president, Obama's Justice Department argued that courts lacked the power to decide whether the program was legal because any evidence of actual wiretapping was a secret that could not be disclosed without damaging national security.

Walker described the Justice Department's arguments as "nit-picking" and "acrobatics." He said the government had spurned every offer to justify its conduct in closed-door proceedings that could have protected any state secrets.

Walker's finding of illegal wiretapping could lead to the first ruling by an appellate court on the legality of the surveillance program. A federal judge in Michigan said in 2006 that Bush had exceeded the president's constitutional powers in putting the warrantless wiretapping program in place, but an appeals court overturned the ruling - without deciding the legality of the surveillance effort - because none of the plaintiffs could show that their calls had been intercepted.

The Justice Department declined to say whether it would appeal today's ruling and instead issued a statement focusing on Attorney General Eric Holder's recent restrictions on government claims of secrecy. The new rules require a high-level Justice Department committee to review all such claims, with the attorney general having the last word.

The new policy strikes "an appropriate balance between rebuilding the public's trust in the government's use of this (secrecy) privilege while recognizing the imperative need to protect national security," the department said.

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