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
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
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
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then rescinded and sealed.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.
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
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."