AP | An Islamic charity group is challenging the Bush administration’s record use of the so-called state secrets privilege, dubbed a “killer bullet” to the group’s case over warrantless wiretapping.
Lawyers for the Oregon-based U.S. arm of the Al-Haramain Islamic Foundation on Wednesday urged a federal judge to toss out the government’s use of the privilege and let their lawsuit proceed.
The now-defunct foundation argues it was caught up in the National Security Agency’s Terrorist Surveillance Program, which intercepted phone calls and e-mails on U.S. soil without warrants. It contends that wiretapping in 2004 was the basis on which the Treasury Department that same year formally labeled the group a terrorist organization.
At the heart of the challenge is a top secret call log that the Treasury Department accidentally turned over to Al-Haramain’s lawyers, who say it shows government terrorist hunters listened to their telephone conversations with foundation officials living in Saudi Arabia.
Last year, the 9th U.S. Circuit Court of Appeals barred the foundation lawyers from using the log as evidence after the Bush administration invoked the state secrets privilege, arguing that to do so would harm national security interests by publicly disclosing spying techniques. Foundation lawyers concede that their lawsuit dies if they can’t use the call log to show government surveillance.
A presidential administration has never lost such a court challenge since the privilege was enshrined into law by the U.S. Supreme Court in 1953, according to a political science professor who studies the issue.
But the San Francisco-based appeals court kept the lawsuit on life support by asking U.S. District Court Judge Vaughn Walker to determine the technical question of whether the state secrets privilege conflicts with the Foreign Intelligence Surveillance Act, known as FISA, the issue that was debated Wednesday. FISA, passed by Congress in 1978, requires government investigators to obtain a warrant from a secret court in Washington D.C. to conduct electronic eavesdropping of suspected terrorists inside the United States.
Government lawyers argued Wednesday that presidents are given extraordinary powers to protect national security, including the ability to eavesdrop without warrants.
The judge wondered if that argument, if true, made the FISA law requiring warrants unconstitutional.
Justice Department lawyer Anthony Coppolino declined to answer that question directly by saying “it was too simplistic” and “conflating two issues.”
Coppolino said that the only way a victim of a warrantless wiretap could sue is if the government acknowledged the eavesdropping. Coppolino and other federal officials have steadfastly refused to confirm or deny investigators wiretapped Al-Haramain. Coppolino said to do so would harm national security by disclosing spying techniques.
Al-Haramain lawyer Jon Eisenberg argued that to kick out the lawsuit and validate that a president’s state secrets privilege power to authorize warrantless wiretaps “subvert the power of Congress” in passing the FISA statute.
Presidential administrations have invoked the privilege about 55 times since the U.S. Supreme Court enshrined the notion into law in a 1953 ruling and Sept. 11, 2001, according to research done by University of Texas, El Paso political science professor William Weaver.
Weaver’s research found that the Bush administration has used it 39 times since 2001 to unilaterally withhold court documents from the court system, the most of any president.
At the height of Cold War tensions between the United States and the former Soviet Union, U.S. presidents used the state secrets privilege six times from 1953 to 1976.
Weaver said the privilege has never been successfully challenged in court.
“Courts are really afraid to confront the executive branch on this issue,” Weaver said.
A separate lawsuit against telecommunications companies that have cooperated with the government is pending in the 9th U.S. Circuit Court of Appeals. The companies filed court papers in the Al-Haramain case urging the judge to dismiss that lawsuit.
The U.S. Supreme Court last year rejected a decision by a federal judge in Detroit that declared the spying program unconstitutional in 2006, saying it violated the rights to free speech and privacy and the separation of powers.
The Terrorist Surveillance Program began after the Sept. 11 terrorist attacks and continued until Jan. 17, 2007, when the White House resumed seeking surveillance warrants.