

A federal appeals court dealt a blow to the Obama administration Friday when it refused to block a judge from admitting top secret evidence in a lawsuit weighing whether a U.S. president may bypass Congress, as President George W. Bush did, and establish a program of eavesdropping on Americans without warrants.

The legal brouhaha concerns U.S. District Judge Vaughn Walker's decision in January to admit as evidence a classified document allegedly showing that two American lawyers for a now-defunct Saudi charity were electronically eavesdropped on without warrants by the Bush administration in 2004. The lawyers — Wendell Belew and Asim Ghafoor — sued the Bush administration after the U.S. Treasury Department accidentally released the top secret memo to them.

The courts had ordered the document, which has never been made public, returned and removed from the case after the Bush administration declared it a state secret. The document's admission to the case is central for the two former lawyers of the Al-Haramain Islamic Foundation charity to acquire legal standing so they may challenge the constitutionality of the warrantless-eavesdropping program Bush publicly acknowledged in 2005.

Absent intervention from the U.S. Supreme Court, the one-line decision (.pdf) by the 9th U.S. Circuit Court of Appeals means the lawyers' case is the only lawsuit likely to litigate the merits of a challenge to Bush's secret eavesdropping program adopted in the aftermath of the Sept. 11 terror attacks.

"We're trying to establish a legal precedent: A rule that the president must comply with legislation passed by Congress," said Jon Eisenberg, the attorney for the two lawyers. "The president is not above the law. This case is important to establish a legal precedent."

The lawyers' 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 after it was declared a state secret.

But last month, 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 didn't have a case.

The Bush and the Obama administration's said the document's use in the trial was a threat to national security. The document at issue isn't likely to ever become public.

Walker's Jan. 5 order only allows lawyers in the case to view it, and they are forbidden to publicly discuss its contents.

Bush acknowledged the existence of the so-called Terror Surveillance Program in 2005. It authorized the NSA to intercept, without warrants, international communications to or from the United States that the government reasonably believed involved a member or agent of al-Qaeda, or affiliated terrorist organization. Congress authorized such spying activity in July.

The Electronic Frontier Foundation claims the TSP went further, and accuses the nations' telecommunication companies of funneling all electronic communications to the National Security Agency without warrants. However, as part of the spy bill approved in July, the government immunized the telcos from lawsuits accusing them of being complicit with the Bush administration.

The Obama administration on Thursday urged Judge Walker, the same judge in the Al-Haramain case, to dismiss the EFF's challenge to the immunity legislation. Walker's decision is pending. The U.S. government had designated Al-Haramain a terror organization

The Justice Department declined comment.

See Also: