Judge Reinstates Islamic Group's Wiretapping Suit

SAN FRANCISCO -- A federal judge on Monday reinstated an Islamic charity's lawsuit challenging a Bush administration surveillance program.

U.S. District Judge Vaughn Walker said there is enough primary evidence showing the charity might have been the target of government-tapped telephone calls that were done without court approval under the administration's so-called Terrorist Surveillance Program.

The U.S. lists the Saudi Arabia-based charity as a terrorist organization. The U.S. branch was based in Ashland, Ore.

The judge had tossed out the case in July but reversed himself when lawyers for the U.S. branch of the now-defunct Al-Haramain Islamic Foundation produced transcripts of congressional testimony and public speeches of high-ranking government officials discussing the surveillance program.

Government lawyers in Washington couldn't be reached for comment late Monday.

In court papers, the government argues that national security interests bar Al-Haramain's lawsuit, and authorities have refused to confirm or deny any eavesdropping. It also argued that allowing such a lawsuit would open a floodgate of litigation by people merely suspecting they were targets.

The lawsuit accuses the government of listening in to telephone calls in early 2004 between a charity officer living in Saudi Arabia and two of his Washington lawyers.

The charity's officer, Soliman al-Buthi, claims he uncovered the alleged wiretapping when a Treasury Department official accidentally turned over a top secret call log to Al Haramain's lawyers.

Another federal judge ordered the lawyers to return the document to the government, and Walker later ruled that they couldn't use it to file their initial lawsuit because the Justice Department argued such disclosure would harm national security.

But now that the charity has shown _ at least preliminarily _ that it might have been subject to warrantless wiretapping through government officials' public disclosures, the top secret document is now back in play in the lawsuit.

Walker said he would read the document in private and determine whether it conclusively proves that the charity was the subject of eavesdropping done with a warrant.

"I feel reasonably confident that a simple glance at that document would tell anyone that our clients were surveilled," said Jon Eisenberg, Al-Haramain's lead attorney.

The judge ordered the government to provide top security clearance to three of the charity's lawyers, including Oakland-based Eisenberg.

In 2007, the 9th U.S. Circuit Court of Appeals also barred the foundation lawyers from using the call log as evidence after the Bush administration argued such a move would harm national security interests.

But the appeals court sent the case back to Walker to determine whether the administration's claim to state secrets privilege is trumped by the Foreign Intelligence Surveillance Act.

The act, known as FISA, requires government investigators to obtain a warrant from a secret court in Washington to conduct electronic eavesdropping of suspected terrorists inside the country.

Walker ruled that FISA does have precedence over the state secrets privilege and said the lawsuit can proceed.

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