Source: Los Angeles Times

A federal judge has ruled that the government violated federal law in failing to obtain warrants before spying on two lawyers working for an Islamic charity in Oregon, a blow to the Bush administration’s anti-terrorism surveillance program.

U.S. District Judge Vaughn Walker rejected assertions by both Presidents Bush and Obama that their state secrets privilege shields them from lawsuits filed by American citizens investigated under a disputed domestic spying program launched after 9/11.

Government lawyers were reviewing the ruling, said Justice Department spokeswoman Tracy Schmaler, declining to say whether the Obama administration would appeal.

Barring an appeal, Walker’s ruling allows the lawyers for the now-defunct Al-Haramain Islamic Foundation to pursue monetary damages as “aggrieved persons” under the federal law protecting them from illegal surveillance.

Government investigators placed Al-Haramain under surveillance after Sept. 11, 2001, without seeking a warrant from the court created by the 1978 Foreign Intelligence Surveillance Act, or FISA. The FISA court was accorded special protections to allow its judges to review in strict confidence sensitive national security matters cited in warrant requests.

The Bush administration, believing that its strategy for fighting terrorism justified bypassing the FISA statute, didn’t attempt to defend its wiretapping practices in the Al-Haramain case. Rather, it argued that the lawsuit should be dismissed because allowing it to proceed would undermine national security.

The Obama White House surprised some civil libertarians when it decided to continue defending Bush’s claims to expanded powers to shield controversial counter-terrorism actions from lawsuits. Some advocates had expected Obama would change the policy

The American Civil Liberties Union and other groups have repeatedly attempted to take the government to trial over warrantless wiretapping but have been thwarted by federal court rulings that they lacked standing to sue unless their individual privacy rights had been violated.

In his 45-page ruling, Walker alluded to the “obvious potential for governmental abuse and overreaching inherent in the defendants’ theory of unfettered executive-branch discretion.” The judge also cited the government’s “impressive display of argumentative acrobatics” in rationalizing its actions.

“Defendants contend this is not a FISA case and defendants are therefore free to hide behind the [state secrets privilege] all facts that could help plaintiffs’ case. In so contending, defendants take a flying leap and miss by a wide margin,” the judge wrote.

Protests Growing
Under the Bush Administration’s policy, any lawyer, whether a personal injury lawyer, a divorce lawyer or even an Austin Texas divorce law attorney, could be the victim of wire tapping if the Fed deemed it necessary. But challenges to Bush policy are likely to grow as more Americans team up with the ACLU to put a stop to unnecessary searches and other acts in the name of homeland security.

Jon Eisenberg, the attorney representing the foundation and lawyers Wendell Belew and Asim Ghafoor, hailed the ruling out of San Francisco as rejecting the Bush administration’s claims to wield expanded powers in pursuit of terrorists and the Obama administration’s support of that posture.

Constitutional law experts noted that neither Bush nor Obama lawyers disputed that the foundation had been placed under warrantless surveillance.

“What comes across loud and clear in the opinion is that the government hasn’t made any attempt to deny the plaintiffs’ assertion that they were electronically surveilled” without a FISA court warrant, said Kara Dansky, a constitutional law professor at Stanford Law School.

“It’s hard to imagine that could be an oversight,” Dansky said, given the breadth of cases in which the state secrets privilege has been invoked.

Eisenberg’s clients brought suit in 2006 after receiving secret documents mistakenly sent to them in the course of a Treasury Department investigation of the Oregon chapter of the global charity, which at the time was suspected of having ties to Al Qaeda. The documents, later ruled confidential and secured by the court, made clear that Belew and Ghafoor’s attorney-client conversations had been subject to eavesdropping by the National Security Agency.

The foundation and its lawyers were required to make a case that they had been victims of illegal surveillance without reference to the secret documents, a burden of proof Walker said they had satisfied.

Walker’s ruling referred to a damage award formula Eisenberg said he proposed to “make it easy” for the administration to settle the case. The plaintiffs have asked for $100 a day for the 202 days for which they say they have indisputable evidence that they were under surveillance, or $20,200 per “aggrieved person.”

Even if Walker adds the usual tenfold maximum for punitive damages, it would cost the government less than $600,000 to settle, said Eisenberg, who has represented the foundation pro bono but could be awarded attorney’s fees if Walker so orders.

“This case is not about money,” Eisenberg said. “It’s about putting the brakes on the abuse of presidential power.”

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My Take: I have a friend who works as a social security disability attorney and he tells me that there have been a lot of new hoops created for his firm to jump through regarding claims cases, which he attributes to the wide birth given to Federal investigators under the Homeland Security act. In short, he is aware that anytime he works with immigrants on social security issues, there is always a chance he may be being watched, as more emphasis is being placed on immigration violation law SS fraud.

But I would be willing to bet that there are so many other ways in which the government is using the Bush policies to skirt civil rights laws, and I’ll also bet much of it is being done right under our noses. What about LA Court Reporters? It seems to me that if you own an LA California County court reporting service that you could easily be included among the list of people who are under watch. Although court records are predominantly public, some are not, and I could certainly see where the Fed might use their power to wield unnecessary claim to those records as well.

At some point we have to get back to the basics: This is a “free” country and the more we fight to keep it free under unnecessary search tactics in the name of protection, the less free we actually become.

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