

With a mere 64 minutes left in its last full day in office, the Bush administration asked a federal judge to stay enforcement of a ruling that would keep alive a lawsuit which tests whether the president can bypass the Congress and eavesdrop on Americans without warrants.

The request was lodged with U.S. District Judge Vaughn Walker of San Francisco at 10:56 p.m. EST on the Martin Luther King Jr. holiday – about 13 hours before the inauguration of President Barack Obama. The filing was among now former President George W. Bush's final legal acts in office.

The Bush administration asked Walker's permission to appeal his Jan. 5 decision to the 9th U.S. Circuit Court of Appeals in San Francisco. Walker had ruled that "sufficient facts" exist that two U.S.-based lawyers for an Islamic charity might have been spied upon for the case to proceed to the next stage.

The case seeks the courts to rule on the constitutionality of the Bush administration's warrantless eavesdropping program the president approved in the aftermath of the Sept. 11, 2001 terror attacks.

Congress authorized the spy program last year as part of legislation immunizing participating telecommunication companies from lawsuits accusing them of violating their customers' civil liberties, but the spying in this case allegedly happened in 2004. Eric Holder, the incoming U.S. attorney, said the Obama administration supported the spy legislation and would defend it in a separate challenge.

On Monday, the Bush administration sought to prevent the disclosure of a Top Secret document at the center of a closely watched spy case, a document Walker ruled could be admitted.

The suit involves two American lawyers who the Treasury Department accidentally gave a Top Secret document in 2004 showing they were illegally eavesdropped on by the government when working for a now-defunct Islamic charity that year.

Their suit looked all but dead in July when they were initially blocked from using the document to prove they were spied on. They were forced to return it to the government.

But two weeks ago, Walker said the document could be used in the case because there was sufficient, anecdotal evidence unrelated to the document that suggests the lawyers for the Al-Haramain charity were spied upon. Without the document, the lawyers — Wendell Belew and Asim Ghafoo — don't likely have a case.

In its Monday filling, (.pdf) the government repeated its assertion that the use of the document in the case would jeopardize national security. The administration said the document was protected by the so-called state secrets privilege and objected to even Walker reviewing it — yet alone the lawyers for Belew and Ghafoo — who Walker said could see it in private.

"If the court were to find … that none of the plaintiffs are aggrieved parties, the case obviously could not proceed, but such a holding would reveal to plaintiffs and the public at large information that is protected by the state secrets privilege — namely, that certain individuals were not subject to alleged surveillance," the administration wrote.

By the same token, the administration argued, if Walker allowed the case to proceed after reviewing the document, it "would confirm that a plaintiff was subject to surveillance."

The government continued: "Indeed, if the actual facts were that just one of the plaintiffs had been subject to alleged surveillance, any such differentiation likewise could not be disclosed because it would inherently reveal intelligence information as to who was and was not a subject of interest, which communications were and were not of intelligence interest, and which modes of communication were and were not of intelligence interest, and which modes of communication may or may not have been subject to surveillance."

A hearing is scheduled in Walker's courtroom on Friday.

"We filed this lawsuit to establish a judicial precedent that the president cannot disregard Congress in the name of national security," said Jon Eisenberg, the lawyer for Belew and Ghafoo. "Plaintiffs have a right to litigate the legality of the surveillance."

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