by Bob Egelko San Francisco Chronicle 1/19/09

President-elect Barack Obama dismayed civil liberties groups last summer when he voted to authorize President Bush’s clandestine wiretapping program after publicly denouncing it.

Now, thanks to a ruling by a San Francisco federal judge, Obama must take a stand on whether the Bush administration violated Americans’ rights when it intercepted their phone calls and e-mails without seeking a court’s permission.

The Jan. 5 decision by Chief U.S. District Judge Vaughn Walker revived the last remaining lawsuit against the program Bush authorized after the terrorist attacks of Sept. 11, 2001. Without seeking congressional approval or court warrants, the president ordered the National Security Agency to intercept calls and e-mails between Americans and suspected foreign terrorists.

Every other legal challenge to the program has been thwarted by its secrecy and the resulting inability of plaintiffs to prove they were a surveillance target. But Walker rejected the Bush administration’s central argument for dismissal in the case being heard in San Francisco – that no one has the right to sue unless the government admits it conducted surveillance – and set the stage for a potentially decisive ruling on whether Bush exceeded his authority.

Now the next step is up to Obama, whose Justice Department will take over the case when he becomes president Tuesday.

Obama’s options

He could continue Bush’s defense strategy to press for dismissal of the suit on national-security grounds. He could switch sides and acknowledge that the program was illegal from the start. Or he could find a middle ground, such as allowing the case to proceed and leaving its resolution to the courts.

“They have to decide quickly, do we continue the Bush course?” said Jon Eisenberg, lawyer for the plaintiff in the case, an Islamic organization that inadvertently received a classified government document in 2005 apparently showing it had been wiretapped. “Does the (new) Justice Department defend (Bush’s) theory of presidential power? It’s hard to imagine.”

His client, the now-defunct Al-Haramain Islamic Foundation, returned the classified document to the government and was barred from citing its contents in court. The Bush administration then sought dismissal of the suit, arguing that the group couldn’t prove it had been wiretapped unless the government admitted it.

Tell-tale statements

Walker, however, said public statements by federal officials showed that Al-Haramain probably had been wiretapped.

The judge cited a 2007 speech in which an FBI deputy director said the group had been under surveillance before the federal government declared it a terrorist organization in 2004, a status Al-Haramain has disputed. That classification, Walker noted, came only after one of the group’s lawyers discussed a lawsuit it faced in connection with the Sept. 11 attacks and some of Osama bin Laden’s relatives in overseas phone calls.

Walker said he would read the classified document and decide whether it showed that Al-Haramain’s calls had been intercepted without a warrant, a conclusion that would put the legality of the surveillance program squarely before him.

Justice Department lawyers have argued that the suit is based on unfounded speculation and that courts lack authority to review the secret program, positions that the incoming Obama administration can adopt or disavow.

Obama’s transition team declined to comment on the case and the issue. During his presidential campaign, however, Obama attacked the surveillance program, promising “no more illegal wiretapping of American citizens” in an August 2007 speech.

Holder’s view

His nominee for attorney general, Eric Holder, was even more outspoken in a June 2008 address to the liberal American Constitution Society.

“I never thought that I would see that a president would act in direct defiance of federal law by authorizing warrantless NSA surveillance of American citizens,” Holder said. “This disrespect of the rule of law is not only wrong, it is destructive in our struggle against terrorism.”

Holder stood his ground at his confirmation hearing Thursday, telling the Senate Judiciary Committee that the president had no power to disregard a 1978 law requiring the government to seek a warrant from a secret court before wiretapping calls between a U.S. citizen and an alleged foreign terrorist or spy.

But when Bush finally sought and gained congressional approval last summer for a revised surveillance effort, Holder said, the program became constitutional. The law that Bush signed authorizes wiretapping for purposes of foreign intelligence-gathering with some degree of court supervision, the extent of which hasn’t been made public. It is a law that “we will make great use of,” Holder told senators.

In an apparent reversal of his position, Obama voted for that law, saying it was better than the 2001 version of the program because Bush accepted congressional authority, judicial review and a Justice Department audit that is due this summer.

Telecom immunity

The measure also contained a provision that Obama had once threatened to filibuster: legal immunity for telecommunications companies that allegedly gave federal agents access to their phone and e-mail networks and customer records.

AT&T customers have challenged that immunity in a suit now pending before Walker in San Francisco. Holder told the senators he would continue the Bush administration’s defense against the suit, unless he discovers “compelling reasons” to change course.

A lawyer for the customers, Cindy Cohn of the Electronic Frontier Foundation, said their case differs from Al-Haramain’s but comes down to the same argument: that the president can’t unilaterally authorize spying on Americans.

If the new administration wants to take a different course, she said, “we certainly hope that they’ll come talk to us” about a settlement.

Eisenberg, Al-Haramain’s lawyer, said the organization has asked for $1 million in punitive damages and substantial attorneys’ fees. But its main goal is a firm rejection – in a court ruling or a binding executive order – of Bush’s claim of broad presidential power.

He added, “We’re looking for a solid, definitive and authoritative interpretation that the program was illegal and the president lacked authority to disregard an act of Congress in the name of national security.”

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