scamper
11-16-2007, 03:05 PM
Court deals near-fatal blow to warrantless wiretap lawsuit
By PAUL ELIAS Associated Press Writer
Article Last Updated: 11/16/2007 11:02:28 AM PST
SAN FRANCISCO—A federal appeals court dealt a near-fatal blow Friday to an Islamic charity's lawsuit over alleged illegal wiretapping by federal investigators, ruling the case can't go forward because a key piece of evidence is protected as a state secret.
The 9th U.S. Circuit Court of Appeals ruled unanimously that a top-secret call log obtained by lawyers for the Oregon-based U.S. arm of the Al-Haramain Islamic Foundation can't be used as evidence. Lawyers for the Bush administration had argued the government would be forced to reveal sensitive "state secrets" if the lawsuit were allowed to proceed.
The document, described by those who have seen it as a National Security Administration log of calls intercepted between the now-defunct Al-Haramain and its American lawyers, was accidentally turned over to Al-Haramain's lawyers by the U.S. Treasury Department.
Al-Haramain, which was labeled by the U.S. government as a terrorist organization, alleged the document proved it had been illegally wiretapped without a warrant.
But without the document, the court said, the foundation has little proof it was wiretapped and can't sue.
The charity's lawyers voluntarily turned over the document to FBI agents after the mistake was discovered. But a lower court ruled that the lawyers couldn't use the actual document to support their lawsuit but could use their memories of its contents to go forward.
The appeals court said that ruling was "a commendable effort to thread the needle," but still ran counter to the state secrets law, which precludes the disclosure of sensitive information in court that could jeopardize national security.
"Such an approach countenances a back door around the privilege and would eviscerate the state secret itself," Judge M. Margaret McKeown wrote for the unanimous three-judge panel. "Once properly invoked and judicially blessed, the state secrets privilege is not a half-way proposition."
But the appeals court did keep the lawsuit alive, if barely, by sending the lawsuit back to a trial court in Portland, Ore., to determine if the law governing the wiretapping of suspected terrorists trumps the state secrets law.
The charity had also argued that warrantless eavesdropping of telephone conversations between its directors and lawyers violated the Foreign Intelligence Surveillance Act, which established a secret court to issue top secret surveillance warrants authorized by a judge.
The appeals court said that "the FISA issue remains central to Al-Haramain's ability to proceed with this lawsuit."
The court has yet to rule on a related lawsuit that broadly challenges the Bush administration's warrantless wiretapping program.
http://origin1.montereyherald.com/state/ci_7482642?nclick_check=1
By PAUL ELIAS Associated Press Writer
Article Last Updated: 11/16/2007 11:02:28 AM PST
SAN FRANCISCO—A federal appeals court dealt a near-fatal blow Friday to an Islamic charity's lawsuit over alleged illegal wiretapping by federal investigators, ruling the case can't go forward because a key piece of evidence is protected as a state secret.
The 9th U.S. Circuit Court of Appeals ruled unanimously that a top-secret call log obtained by lawyers for the Oregon-based U.S. arm of the Al-Haramain Islamic Foundation can't be used as evidence. Lawyers for the Bush administration had argued the government would be forced to reveal sensitive "state secrets" if the lawsuit were allowed to proceed.
The document, described by those who have seen it as a National Security Administration log of calls intercepted between the now-defunct Al-Haramain and its American lawyers, was accidentally turned over to Al-Haramain's lawyers by the U.S. Treasury Department.
Al-Haramain, which was labeled by the U.S. government as a terrorist organization, alleged the document proved it had been illegally wiretapped without a warrant.
But without the document, the court said, the foundation has little proof it was wiretapped and can't sue.
The charity's lawyers voluntarily turned over the document to FBI agents after the mistake was discovered. But a lower court ruled that the lawyers couldn't use the actual document to support their lawsuit but could use their memories of its contents to go forward.
The appeals court said that ruling was "a commendable effort to thread the needle," but still ran counter to the state secrets law, which precludes the disclosure of sensitive information in court that could jeopardize national security.
"Such an approach countenances a back door around the privilege and would eviscerate the state secret itself," Judge M. Margaret McKeown wrote for the unanimous three-judge panel. "Once properly invoked and judicially blessed, the state secrets privilege is not a half-way proposition."
But the appeals court did keep the lawsuit alive, if barely, by sending the lawsuit back to a trial court in Portland, Ore., to determine if the law governing the wiretapping of suspected terrorists trumps the state secrets law.
The charity had also argued that warrantless eavesdropping of telephone conversations between its directors and lawyers violated the Foreign Intelligence Surveillance Act, which established a secret court to issue top secret surveillance warrants authorized by a judge.
The appeals court said that "the FISA issue remains central to Al-Haramain's ability to proceed with this lawsuit."
The court has yet to rule on a related lawsuit that broadly challenges the Bush administration's warrantless wiretapping program.
http://origin1.montereyherald.com/state/ci_7482642?nclick_check=1