Bob Egelko San Francisco Chronicle 7/03/08

A federal judge in San Francisco dismissed a lawsuit Wednesday that sought to prove President Bush acted illegally in 2001 when he ordered the wiretapping of phone calls between Americans and suspected foreign terrorists without court approval.

Chief U.S. District Judge Vaughn Walker said an Islamic charity on the government’s terrorist list could not use a crucial classified document – an accidentally released memo indicating the charity and its lawyers had been wiretapped – to show that it had been harmed by the surveillance program and thus had the right to challenge it in court. But the organization’s lawyer said he wasn’t giving up.

“We will now be marshalling all the nonclassified evidence we have to make our case,” attorney Jon Eisenberg said. “We believe we can make a solid showing.”
Walker gave lawyers for the now-defunct charity, Al-Haramain Islamic Foundation, 30 days to file a new lawsuit relying on publicly available evidence to show it could reasonably believe it had been wiretapped.

Other suits challenging Bush’s wiretapping program have all been dismissed on the grounds that plaintiffs who suspected their calls had been intercepted had no way to prove it.

About 40 lawsuits against telecommunications companies that allegedly shared phone and e-mail networks and customers’ records with federal agents are also pending before Walker. The Senate, however, is scheduled to vote next week on legislation that would require dismissal of those suits.

The government inadvertently sent Al-Haramain a classified document in 2004 indicating that the organization and two of its lawyers had been wiretapped. The charity promptly returned the document at the government’s request but has relied on its contents to pursue its lawsuit.

Civil liberties groups had hoped that Al-Haramain, the only plaintiff in the nation with actual evidence of wiretapping, would be able to obtain a ruling on whether the taps violated constitutional standards and a 1978 federal law requiring a court warrant for any such surveillance.

In Wednesday’s ruling, Walker said Congress, in the 1978 law, had established “the exclusive means for foreign intelligence activities” – an apparent rejection of Bush administration arguments that the president has the constitutional authority to order wiretapping on his own.

But Walker said Al-Haramain faces an obstacle that may be insurmountable: The wiretap document remains a government secret and can’t be used to prove that the onetime charity was affected by the surveillance program.

He noted that a federal appeals court ruled in November that Al-Haramain’s lawyers also could not rely on their memories of the document to establish that the group had been wiretapped.

At the appeals court’s August 2007 hearing, Eisenberg acknowledged that he couldn’t establish the right to sue without evidence in the wiretap document. But he said Wednesday that the government has made disclosures in the last year, including a declaration last month that Al-Haramain was affiliated with al Qaeda, that might help him show the group had been under surveillance.

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See also Terrorist profile: The Justice Department considers letting the FBI investigate Americans without any evidence of wrongdoing. A4