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Judge: U.S. Illegally Wiretapped Islamic Charity
By Joe Palazzolo | March 31, 2022 6:31 pm

In a long-running challenge to the Bush administration’s Terrorist Surveillance Program, a federal judge ruled on Wednesday that the U.S. government illegally wiretapped two American lawyers and the Islamic charity they represent.

U.S. District Judge Vaughn Walker in the San Francisco found that the plaintiffs - the Ashland, Ore., branch of the Saudi-based Al-Haramain Islamic Foundation and lawyers Wendell Belew and Asim Ghafoor — provided enough evidence to prove they were the subjects of warrantless electronic surveillance.

The Obama administration, like the Bush administration, refused to turn over evidence in the case, insisting that doing so would expose state secrets. But Walker ruled that public documents and statements by government officials showed a violation of the Foreign Intelligence Surveillance Act of 1978. The court has not yet decided the amount of damages to award the lawyers.

Justice Department spokeswoman Tracy Schmaler said the decision is being reviewed.

Click here for the Associated Press story and here for Politico’s. Read Judge Walker’s decision here.

Wednesday’s ruling stems from a 2006 lawsuit in which the plaintiffs claimed that their 2004 phone conversations were wiretapped without warrants after the Treasury Department declared the Oregon branch Al-Haramain Islamic Foundation a supporter of terrorism.

The lawsuit stood out from other challenges to the TSP because the government accidentally disclosed to the charity’s lawyers top-secret evidence — a document - of the alleged wiretaps. The lawyers returned the document and a federal appeals court barred them from using it, or any related testimony, in support of the lawsuit.

Jon Eisenberg, the lead plaintiffs lawyer, told the AP that 45-page ruling holds the Bush administration program was unconstitutional. But over at Politico, Josh Gerstein notes that the “import of the judge’s ruling could be tempered” by the lack of substantive evidence produced by the Justice Department.

Schmaler issued this statement about the DOJ’s position on state secrets, according to Politico:

The Attorney General has instituted key reforms to the Department’s state secrets policy to strike an appropriate balance between rebuilding the public’s trust in the government’s use of this privilege while recognizing the imperative need to protect national security. The Department’s new policy takes significant steps to reform the use of the privilege by ensuring that if it is invoked, it is narrowly tailored and done so following a review by a committee of senior Justice officials and approved by the attorney general.

This process is designed to provide greater accountability for the use of the privilege and to ensure that the Department invokes the privilege only to the extent that it is absolutely necessary to protect national security.

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