SAN FRANCISCO - An Islamic charity challenging former President George W. Bush's wiretapping program in a San Francisco federal court cited candidate Barack Obama's words Thursday in arguing that a president has no power to unilaterally order eavesdropping on Americans.
Lawyers for the Al-Haramain Islamic Foundation introduced their brief by quoting Obama's words in December 2007: "Warrantless surveillance of American citizens, in defiance of FISA, is unlawful and unconstitutional."
FISA, the Foreign Intelligence Surveillance Act of 1978, requires the government to get a warrant from a court that meets in secret before intercepting messages between Americans and suspected foreign terrorists. Bush acknowledged in 2005 that he authorized such surveillance four years earlier and said he had constitutional authority to take such actions during wartime.
Chief U.S. District Judge Vaughn Walker in San Francisco has scheduled a hearing Sept. 1 on whether Al-Haramain has the right to sue the government and, if so, whether it was wiretapped unconstitutionally.
The government accidentally gave Al-Haramain a classified document in 2004 that reportedly showed that two of the organization's lawyers had been wiretapped before the Bush administration designated it as a terrorist group.
Al-Haramain returned the document at the government's request, but has argued that federal officials' public statements show it was the target of electronic surveillance - a critical fact in establishing its right to sue.
In Thursday's filing, the now-defunct charity said no president has the inherent power to order wiretapping.
This is the time, Al-Haramain's lawyers said, for Walker to answer the crucial question: "May the president of the United States break the law in the name of national security?"