Judge Tosses Warrantless Wiretap Cases

A federal judge in San Francisco has thrown out more than 30 lawsuits against AT&T and other phone companies. The suits claimed the telecoms illegally cooperated with the Bush administration's anti-terrorist surveillance program. But the same judge kept alive similar lawsuits against the government.

When the wiretapping program was first outed in 2005, it spawned dozens of lawsuits across the country. To keep things manageable, they were all brought to U.S. District Court in San Francisco.

"We need to be able to trust them," says Cindy Cohn, legal director for the Electronic Frontier Foundation, which sued the phone companies. "The only way we can have trust in them is if there's accountability when they violate our privacy rights."

Last summer, Congress rewrote the rules for wiretapping, and also granted retroactive immunity to the phone companies. As a result, cases against the telecoms have been dismissed. Cases against the government are still alive, and one in particular leads the pack.

"It has been an amazing case," says Paul Schwartz, a Berkeley law professor. "It has had more twists and turns here than a Hollywood thriller."

Schwartz is talking about the case known as Al-Haramain v. Bush — or, these days, Al Haramain v. Obama. The lawyers for a now-defunct Islamic charity sued after they saw a secret government document that apparently proved their phones had been monitored.

For almost three years, the Bush administration tried to quash the lawsuit, arguing that the wiretapping program was simply too secret for court. This is known as the state secrets privilege, and that usually is enough to convince a court to shut a case down.

"The general attitude has been extremely deferential and has taken the government at its word, and has decided that if there are state secrets, then there's state secrets," Schwartz says.

But so far, the tactic has failed to stop the Al-Haramain case. Judge Vaughn Walker has been skeptical of the government's use of the state secrets privilege — keeping the case alive so long, it's now the responsibility of the Obama administration. And that's awkward. Presidential candidate Obama criticized the Bush administration's frequent use of the state secrets privilege, but now his Justice Department continues to invoke it.

"There is strong internal pressure to stay the course," says Douglas Kmiec, a conservative legal scholar who backed Obama in the campaign. He says people can't expect the Justice Department to turn on a dime. Adding a big problem is the fact that the president hasn't yet filled some of the department's top jobs.

"You need the people within the department to be on the job, to be able to say: Here is the way an alternative approach would work," Kmiec says.

But the Al-Haramain case isn't waiting. Judge Walker on Wednesday ordered both sides to put the secrecy debate aside and move on to the case itself. That means the Obama administration has to defend the legality of Bush's warrantless wiretapping program.

For plaintiff's attorney Jon Eisenberg, the situation inspires a kind of glee: "What do they do now? Do they oppose it? Do they support it? Was all that campaign rhetoric just rhetoric? Or are they going to follow through? The day of reckoning is upon us," he says.

Actually, the day of reckoning is Sept. 1. That's when the Obama administration's lawyers are due back in front of the judge to explain just where they stand on the legality of Bush's surveillance program.

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