Bush lawyer tangles with judge over wiretaps Attorney won't say if Congress can limit president's power

.S. District Judge Vaughn Walker speaks at the St. Francis Hotel Wednesday, March 22, 2006, in San Francisco. On Thursday, July 20, 2006, Judge Walker refused to dismiss a lawsuit challenging the Bush administration's domestic spying program, rejecting government claims that allowing the case to go forward could expose state secrets and jeopardize the war on terror. (AP Photo/San Francisco Daily Journal, S.Todd Rogers) ** NO SALES MAGS OUT MANDATORY CREDIT ** Ran on: 08-11-2006 U.S. District Judge Vaughn Walker ruled that a suit against AT&T could proceed. Ran on: 08-11-2006 Ran on: 08-11-2006 Ran on: 08-11-2006 less .S. District Judge Vaughn Walker speaks at the St. Francis Hotel Wednesday, March 22, 2006, in San Francisco. On Thursday, July 20, 2006, Judge Walker refused to dismiss a lawsuit challenging the Bush ... more Photo: S.Todd Rogers, AP Photo: S.Todd Rogers, AP Image 1 of / 3 Caption Close Bush lawyer tangles with judge over wiretaps 1 / 3 Back to Gallery

A Bush administration lawyer resisted a San Francisco federal judge's attempts Wednesday to get him to say whether Congress can limit the president's wiretap authority in terrorism and espionage cases, calling the question simplistic.

"You can't possibly make that judgment on the public record" without knowing the still-secret details of the electronic surveillance program that President Bush approved in 2001, Justice Department attorney Anthony Coppolino said at a crucial hearing in a wiretapping lawsuit.

Chief U.S. District Judge Vaughn Walker didn't rule immediately on the government's request to dismiss the suit by an Islamic charity in Oregon, which says a document that federal authorities accidentally released showed it was wiretapped.

But Walker, in an extensive exchange with Coppolino, said Congress had spoken clearly in a 1978 law that required the government to obtain a warrant from a secret court before it could conduct electronic surveillance of suspected foreign terrorists or spies.

"The president is obliged to follow what Congress has mandated," Walker said.

Coppolino replied that Congress has also authorized the president to protect the nation and its military secrets.

The case may determine whether any U.S. court can judge the legality of Bush's covert order to the National Security Agency to intercept phone calls and e-mails between Americans and suspected foreign terrorists without seeking judicial approval. After Bush acknowledged the existence of the program, Congress temporarily extended it in August and now is debating whether to protect telecommunications companies from lawsuits for their past cooperation.

Most lawsuits challenging the program have been dismissed because the plaintiffs were unable to show that they had been wiretapped. But Al-Haramain Islamic Foundation, a now-defunct organization that was once on the government's terrorist list, said it learned it had been a surveillance target from a document that the National Security Agency inadvertently turned over in 2004.

The foundation returned the document at the government's request. The Ninth U.S Circuit Court of Appeals ruled in November that the document was so sensitive that Al-Haramain's lawyers couldn't even rely on their recollections of it to establish wiretapping.

Rather than dismissing the suit, however, the court returned the case to Walker to decide whether the case could proceed under an untested provision of the 1978 surveillance law that allows a federal judge to hold a closed-door hearing and review accusations by wiretapping targets that the government has engaged in illegal spying.

At Wednesday's 90-minute hearing, Coppolino renewed the Bush administration's attempt to scuttle the suit, arguing that the 1978 law authorizes a court to review the legality of a particular wiretap only when the government has acknowledged that it engaged in electronic surveillance and filed criminal charges based on wiretap evidence.

That didn't occur in this case, so Al-Haramain can't show that it was affected by the surveillance program, Coppolino said.

But Walker pressed him on a more basic issue: whether Congress acted constitutionally when it required court approval for such wiretaps in the 1978 Foreign Intelligence Surveillance Act.

"I think it's a bit of a simplistic question," Coppolino said.

"One might call it a fundamental question," the judge replied.

The government lawyer said that Congress "sought to intrude on the president's authority to authorize surveillance" when it enacted the law, and that Bush, acting under his constitutional powers, had determined that its provisions were not sufficient to allow law enforcement authorities to thwart terrorists' attack plans.

But Coppolino said the constitutionality of the law, and the related question of whether it is binding on the president, can't be resolved without delving into operational details whose exposure would damage national security.

Al-Haramain's lawyer, Jon Eisenberg, contended that the 1978 law allows Walker to review the secret National Security Agency document and decide whether the foundation was wiretapped and can proceed with its lawsuit. Responding to Coppolino's argument that only those who are charged with crimes based on wiretap evidence have the right to contest the electronic surveillance, Eisenberg noted that the 1978 law defines unauthorized wiretapping as a felony.

"When the president of the United States commits a felony in his efforts to protect national security and nobody knows about it, the harm is to this country," Eisenberg said.