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Judge Tosses Warrantless Wiretap Cases

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Judge Tosses Warrantless Wiretap Cases


Judge Tosses Warrantless Wiretap Cases

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A federal judge in San Francisco yesterday threw out more than 30 lawsuits against AT&T and other phone companies. The lawsuits claim the telecoms illegally cooperated with the Bush administration's antiterrorist surveillance program. At the same time, the judge kept alive similar lawsuits against the government. As NPR's Martin Kaste reports, that puts the Obama administration in an uncomfortable position.

MARTIN KASTE: When the wiretapping program was first outed in 2005, it spawned dozens of lawsuits around the country. To keep things manageable, they were all brought here - U.S. District Court in San Francisco. Cindy Cohn is legal director for the Electronic Frontier Foundation, which sued the phone companies.

Ms. CINDY COHN (Electronic Frontier Foundation): We need to be able to trust them. And the only way we can have trust in them is if there is accountability when they violate our privacy rights.

KASTE: But 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 now been dismissed. Cases against the government are still alive, and one in particular leads the pack.

Professor PAUL SCHWARTZ (University of California, Berkeley): It has been an amazing case. There have been more twists and turns here than a Hollywood thriller.

KASTE: Berkeley law professor Paul Schwartz is talking about the case known as al-Haramain vs. Bush, or these days al-Haramain vs. Obama. The lawyers for a now-defunct Islamic charity sued after they saw a secret government document that apparently proved that 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. Paul Schwartz says when it's invoked, it's usually enough to convince a court to shut a case down.

Prof. SCHWARTZ: The general attitude, I think, has been extremely differential and has taken the government at its word and decided that if there were state secrets there were state secrets.

KASTE: 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 become the responsibility of the Obama administration. And that's awkward. Candidate Obama criticized the Bush administration's frequent use of the state secrets privilege, but now his Justice Department continues to invoke it.

Mr. DOUGLAS KLEMECK(ph) (Legal scholar): There is strong internal pressure to stay the course.

KASTE: Douglas Klemeck is a conservative legal scholar who backed Mr. Obama in the campaign. He says people can't expect the Justice Department to turn on a dime. A big problem, he says, is that the president hasn't yet been able to fill some of the department's top jobs.

Mr. KLEMECK: You need the people within the department to be on the job, to be able to say here's the way an alternative approach would work.

KASTE: But the al-Haramain case isn't waiting. Yesterday, Judge Walker ordered both sides to put the secrecy debate aside and move on to the case itself. That means the Obama administration now finds itself having to defend the legality of President Bush's warrantless wiretapping program, a program candidate Obama criticized. For plaintiff's attorney Jon Eisenberg, the situation inspires a kind of glee.

Mr. JON EISENBERG (Attorney): What do they do now? Do they oppose it? Do they support it? Was all that campaign rhetoric nothing more than rhetoric or are they going to follow through? The day of reckoning is upon us.

KASTE: Actually, the day of reckoning is September 1st. 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 President Bush's surveillance program.

Martin Kaste, NPR News, San Francisco.

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