The Obama administration is urging a federal judge to dismiss a lawsuit weighing whether a sitting U.S. president may lawfully create a spying program to eavesdrop on Americans’ electronic communications without warrants or congressional authorization.

The nearly 5-year-old case, having a tortured procedural history, is the furthest along in challenging the Bush administration’s warrantless, Terror Surveillance Program adopted in the wake of the September 11 terror attacks.

Two former American lawyers for a now-defunct Saudi charity brought the case. They allege some of their 2004 telephone conversations to Saudi Arabia were siphoned to the National Security Agency without warrants. The allegations were based on classified documents the government accidentally mailed to the two former lawyers of an Oregon chapter of the Al-Haramain Islamic Foundation.

After a mountain of paperwork, a trip to the appellate courts and countless hearings and motions, U.S. District Judge Vaughn Walker of San Francisco ruled in June that the lawyers must make their case without the documents, which both the Bush and Obama administrations claimed were a state secret.

Among other things, the government argued in a filing (.pdf) late Thursday:

"Plaintiffs rely on a string of sheer conjecture in an attempt to prove they were subject to the alleged TSP surveillance in 2004. But the fact that the president authorized the TSP, that the government has investigated terrorist financing by charitable organizations like the Al-Haramain Islamic Foundation of Saudi Arabia and its worldwide branches, that plaintiff AHIF-Oregon had been designated as a Specially Designated Global Terrorist, and, indeed, that this designation had been supported by 'classified' 'intelligence' information, does not establish that the government electronically surveilled the plaintiffs under the TSP or otherwise."

It was the fourth time the government moved to dismiss the case.

Last month, meanwhile, counsel for the Al-Haramain lawyers cited a bevy of circumstantial evidence (.pdf) that they claimed demonstrated that the two charity lawyers – Wendell Belew and Asim Gafoor – were unlawfully spied upon.

The evidence included speeches by government officials discussing an investigation that concluded with the listing of Al-Haramain as a terror organization to the FBI’s public disclosure that it monitored Al-Haramain officials.

The legal issue centers on whether future presidents may adopt a so-called Terror Surveillance Program, which was President George W. Bush’s once-secret warrantless wiretapping program disclosed in 2005 by The New York Times. Bush said his war powers granted him the power to create the TSP program.

A hearing was set for September 23.

In July 2008, Bush signed legislation authorizing the type of surveillance at issue in this case – allowing the warrantless monitoring of Americans’ electronic communications if they are communicating overseas with somebody the government believes is linked to terrorism.

Then-Sen. Barrack Obama, now president, voted for that legislation, which also immunized the nation’s telecommunication companies from lawsuits charging them with being complicit with the Bush administration’s warrantless, wiretapping program. Those lawsuits – combined into one in San Francisco federal court – are on appeal.

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