Al-Haramain Spying Case to Proceed

The Bush administration has had another defeat at the hands of Chief Judge Vaughn Walker in the U.S. District Court in San Francisco. Walker denied the administration's third motion to dismiss the case.

In reviving a suit filed by Al-Haramain Islamic Foundation, Chief U.S. District Judge Vaughn Walker said the group had enough publicly available evidence to show that it could reasonably believe it had been wiretapped....

Walker had dismissed the suit in July, saying the group could not use a classified document that the government had accidentally turned over to the foundation.

But later that month, the group produced nonsecret information - an October 2007 speech in which a deputy FBI director said that the agency "used ... surveillance" in an investigation into whether the organization was linked to terrorism. The speech was given at a conference of the American Bankers Association and American Bar Association on money laundering.

Now that the group has found that nonclassified evidence, Walker said he will examine the classified evidence and decide whether the group could proceed with its claims that Bush's program of conducting surveillance without a court warrant violated federal law or the U.S. Constitution.

EFF and Wired's Threat Level have more background information. From Wired:

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 has a second spy case pending, EFF's lawsuit contending that the FISAAA passed by Congress last July unconstitutionally granted immunity to the telcos.

All this holds the possibility that we still might have a remedy in the courts on the issue, and provides an early test for the Obama Justice Department. Presuming the Bush administration appeals this decision, would the Obama team continue that fight? Given the legal team he's assembled, that doesn't seem likely. For more on that, and the interesting timing of this case, emptywheel has a great post

So it's very possible that we could finally have some light shed on the warrantless wiretapping program in this case. That should not, however, preclude Congress from finally conducting its own investigation in the form of a reconstituted Church Commission and the Obama administration from cooperating fully with that investigation. There really isn't a way for Congress to recover everything it lost in its myriad capitulations to a lawless administration. But a bright light shined on the whole affair might just keep it from happening yet again.

For more discussion, see drational's diary.