Bob Egelko San Francisco Chronicle 7/30/08

An Islamic organization made a last-ditch attempt Tuesday to challenge President Bush’s wiretapping program in court, saying it can prove it was the target of government spying by citing nonsecret information – a speech by a deputy FBI director.

A federal judge in San Francisco had ruled July 8 that Al-Haramain Islamic Foundation could not use secret evidence – a classified document that the government accidentally turned over to the foundation – to show it was wiretapped. Chief U.S. District Judge Vaughn Walker then dismissed Al-Haramain’s lawsuit, saying the organization could not prove it was harmed by the surveillance program and thus had no right to challenge it in court.

But Walker gave Al-Haramain one last chance to reinstate its suit if it could offer publicly available evidence that showed it could reasonably believe it had been wiretapped. If it can meet that test, the judge said, he could then examine the classified evidence and decide whether Bush’s warrantless surveillance program violated federal law or the U.S. Constitution.

The stakes are potentially momentous, as the only other pending lawsuits in the nation over the surveillance program – against telecommunications companies that allegedly shared their networks and records with government agents – are headed for dismissal in Walker’s court under legislation Bush recently signed. If Al-Haramain’s suit is dismissed as well, federal courts are unlikely to ever decide whether the program was legal.

In his July 8 ruling that dismissed the suit, Walker suggested that Bush’s program would be on shaky grounds if courts had the authority to rule on its legality. The judge said federal agents can wiretap calls between Americans and suspected foreign terrorists only if they obtain a warrant from a secret court, as required by a 1978 law – apparently rejecting the president’s claim that he has the constitutional authority to order surveillance on his own.

In Tuesday’s amended lawsuit, attorneys for Al-Haramain, a now-defunct charity, quoted Deputy FBI Director John Pistole as saying in an October 2007 speech that the FBI “used … surveillance” in an investigation into whether the organization was linked to terrorism.

The Treasury Department declared the U.S. branch of Al-Haramain, based in Oregon, to be a terrorist organization in September 2004. Other comments in Pistole’s speech show that the government relied on evidence from the surveillance in making the terrorist designation, the suit said.

Pistole’s speech to the American Bankers Association and the American Bar Association has been posted on the FBI’s Web site, the suit said. It said his comments contradict claims by government lawyers, in seeking dismissal of the case, that Al-Haramain and its lawyers “do not know whether they have been surveilled, much less whether they have been surveilled under the (wiretapping program).”

The Treasury Department confirmed its use of classified information in the Al-Haramain investigation in a letter to the charity’s lawyers in February, the suit said.

During the apparent surveillance period, the suit said, the two Al-Haramain lawyers spoke regularly by phone with one of the charity’s directors in Saudi Arabia and discussed legal representation in a pending lawsuit by private plaintiffs who accused the organization of helping to finance the Sept. 11, 2001, terrorist attacks. Al-Haramain has denied any connection to terrorism.

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This article appeared on page B – 3 of the San Francisco Chronicle