SAN FRANCISCO — A federal judge ruled Monday that "sufficient facts" exist to keep alive a lawsuit brought by two U.S.-based lawyers for a Islamic charity who say they were eavesdropped on without warrants.
The suit involves two American lawyers accidentally given a Top Secret document showing they were eavesdropped on by the government when working for a now-defunct Islamic charity in 2004. Their suit looked all but dead in July when they were initially blocked from using that document to prove they were spied on.
The case tests whether a sitting U.S. president may bypass Congress — in this case whether President Bush abused his power by authorizing his secret spying program in the aftermath of the Sept. 11, 2001, terror attacks.
"I don't want President Obama to have that power any more than I do President Bush," said Jon Eisenberg, the attorney for the two lawyers who are suing the administration.
U.S. District Judge Vaughn Walker said the lawyers' amended lawsuit, even absent the classified document, showed there was enough evidence for the case to continue. The amended lawsuit pieces together snippets of public statements from government investigations into Al-Haramain, the Islamic charity the lawyers were working for and, among other things, a speech about their case by an FBI official.
"The plaintiffs have alleged sufficient facts to withstand the government's motion to dismiss," Walker ruled in a 25-page opinion (.pdf). Walker said the nation's spy laws now demand that he view the classified document and others to decide whether the lawyers were spied on illegally and whether Bush's spy program was unlawful.
The case concerns lawyers Wendell Belew and Asim Ghafoor, whose case appears now the most likely to lead to a ruling on the legality of Bush's warrantless-wiretapping program. That program started after the Sept. 11 terror attacks and involved various initiatives that peered into Americans' phone and internet usage without court approval — a surveillance program ratified by Congress last year in legislation immunizing participating telecommunication companies.
Walker is also considering a lawsuit brought by the Electronic Frontier Foundation challenging whether Congress unconstitutionally granted immunity to telecommunications companies from those lawsuits accusing them of assisting the Bush administration to secretly spy on Americans without warrants.
Walker's decision Monday came six months after he ruled that he could look at the Top Secret document in private to see if the surveillance was illegal, but only if the lawyers could first find independent evidence they were allegedly spied on in violation of how the Foreign Intelligence Surveillance Act was written at the time.
On Monday, Walker ruled: "To be more specific, the court will review the sealed document ex parte and in camera. The court will then issue an order regarding whether plaintiffs may proceed — that is, whether the sealed document establishes that plaintiffs were subject to electronic surveillance not authorized by FISA."
During oral arguments before Walker last month, Justice Department special counsel Anthony Coppolino said the lawyers for the Saudi-based Al-Haramain charity — designated a terror group by the United States — did not have enough evidence to make a case. "This is speculation, this is conjecture, this is not evidence," he said.
The government has never declared whether it had proper court authorization to eavesdrop on the lawyers' U.S.-based telephone conversations with Saudi charity officials.
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