Judge rejects bid to derail wiretap challenge

A San Francisco federal judge rejected on Friday the Obama administration’s attempt to derail a challenge to former President George W. Bush’s electronic surveillance program by withholding a critical wiretap document.

President Obama’s Justice Department had appeared to defy a previous order by Chief U.S. District Judge Vaughn Walker to allow lawyers for an Islamic organization to see the classified document, which reportedly showed that the group had been wiretapped. The document, which the government accidentally sent to the Al-Haramain Islamic Foundation, could establish its right to sue over the legality of the program.

Justice Department lawyers told Walker in February that he had no power to enforce his order, and indicated they would remove the document from his files if he planned to disclose it to Al-Haramain’s lawyers. But after a federal appeals court denied the department’s request to intervene, Walker told the government Friday to cooperate.

“The United States should now comply with the court’s orders,” the judge said. He told lawyers for the administration and Al-Haramain to work out a protective order by May 8 that would maintain the document’s secrecy after it had been shown to the Islamic group’s lawyers.

If the two sides can’t agree, Walker said, he will issue his own protective order “under which this case may resume forward progress.”

The Justice Department said it was reviewing the order.

The case is one of two before Walker challenging the constitutionality of the program that Bush secretly authorized in 2001 to intercept phone calls and e-mails between Americans and suspected foreign terrorists without seeking a court warrant, as required by a 1978 law.

Al-Haramain, a now-defunct charity, inadvertently obtained a document in 2004 that reportedly showed it had been wiretapped that year during an investigation that led to its placement on the government’s terrorist list.

The organization returned the document and has been barred from using it to establish that it was a target of the surveillance program and had a right to sue over its legality. But Walker ruled in January that Al-Haramain had shown through officials’ public statements that it had probably been wiretapped.

In response, the Justice Department said access to the document was controlled by the National Security Agency, which has determined that Al-Haramain’s lawyers are not entitled to see it.

Jon Eisenberg, a lawyer for Al-Haramain, said Friday the next step is for him and a colleague who have passed FBI background checks to review the document under security measures approved by Walker, and try to prove that the organization was wiretapped without court approval.

This article appeared on page A - 6 of the San Francisco Chronicle

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