NOTE: Defense attorney for the Saudi-based Muslim charity is Steven Goldberg, a Jew and ACLU member.
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Ex-Islamic charity wins ruling in wiretap case
By Michelle Roberts, The Oregonian February 27, 2009
A ruling in the 9th U.S. Circuit Court of Appeals on Friday clears the way for a case that could ultimately determine whether the Bush administration broke the law by wiretapping the attorneys of an Oregon chapter of an Islamic charity.
The Justice Department had asked for a stay in the case, arguing that national security would be compromised if a lawsuit brought by Al-Haramain Islamic Foundation, a defunct charity that once operated in Ashland, was allowed to proceed.
The suit is the only one of its kind to have qualified for the standing needed to challenge the government's warrantless wiretapping program.
The Obama administration has continued to cite the so-called state secrets privilege as its defense, following the tactics of the Bush administration.
On Friday, a federal appeals court in San Francisco rejected the Justice Department's request for an emergency stay. The Justice Department had asked to delay court hearings after it appeared Al-Haramain lawyers would finally be granted access to a document that showed the government had illegally tapped phone calls between the director of the charity and his lawyers.
Court watchers are waiting to see if the Obama administration appeals the case to the U.S. Supreme Court.
Charles Miller, a spokesman for the civil division of the U.S. Department of Justice, said Friday that the office would not comment on the ruling.
The case began in 2006 after the Bush administration "inadvertently disclosed a document" to Al-Haramain attorneys and several others affiliated with the case, said Steven Goldberg, a Portland-based lawyer for the defunct charity.
Goldberg said that he is prohibited from talking about the specifics of the document but that "we believe it was evidence of the fact that our people [Muslims] were subjected to unlawful surveillance."
After the mistake was discovered, the document was returned to the government, which placed it under lock and key, arguing that it was a state secret that could threaten national security if disclosed. Goldberg and other lawyers for Al-Haramain, however, argued that they needed it to prove the wiretapping.
A number of organizations, including the American Civil Liberties Union, have attempted to sue the government over similar circumstances but were denied standing because they "couldn't prove that their rights had been violated," Goldberg said.
"That left our case as the only one that could prove our clients were subject to this program," he said. "But the only way we could prove that was through this document that we no longer had access to."
Al-Haramain has been locked in an ongoing, multi-track legal battle with the federal government since the U.S. Treasury Department declared the Saudi-based group a terrorist organization in 2004.
The Saudi government forced the group to disband, but the Bush administration re-designated it in 2008, saying it was still attempting to operate.
The 9th Circuit eventually agreed that the disputed document was protected as a state secret. But the court ruled that Al-Haramain could try to find another way to show it had standing to sue the government over domestic wiretapping, including using their "recollections" of the document.
"We then made a preliminary showing that we were subject to surveillance," Goldberg said, adding that U.S. District Judge Vaughn Walker, the chief judge for the District of Northern California, "said 'there sure looks like there's meat on them bones.'"
In January, Walker ordered the government to process the applications for Goldberg and two of his fellow attorneys to apply for the top security clearance needed to access the document. On Feb. 12, Goldberg and one other attorney received notification that their applications were "favorably adjudicated."
The government sought the stay this week to prevent the attorneys from finally getting access to the document.
Goldberg said he and his fellow attorneys were disappointed that the new [Obama] administration had chosen to fight the case. "We're not seeing any difference between the two administrations," he said. Goldberg expressed relief over Friday's ruling. "Finally, after three years, we are supposed to proceed to the merits of this case," he said. "Ultimately, we're trying to determine whether the Bush administration broke the law. We're finally entering a stage of this case where we're going to get to that question."
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RELATED
Audio of Criminal Law Lecture Series
Al-Haramain Islamic Foundation v. George W. Bush
Steven Goldberg & Ashlee Albies, November 20, 2006
http://lawlib.lclark.edu/podcast/?p=127
Documents of this case can be found at the
National Lawyers Guild. http://nlg.org/
More details of the case at Bill of Rights Defense Committee
http://www.bordc.org/threats/spying.php - scroll down the page to “Court Cases and Legislation.”
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