Note that in in this case both ends of the telephone conversations (which were illegally eavesdropped upon without a warrant) were within the United States despite Bush Assministration claims that they only eavesdrop sans warrant on calls where one party is located abroad.
A federal judge suggested Tuesday that he would try to keep alive a suit that challenges President Bush’s domestic wiretapping program, despite claims by government lawyers that doing so would damage national security.
U.S. District Judge Garr King said he expected to render his decision next week in a case involving an Oregon-based Islamic charity that the government said had links to Osama bin Laden. The charity alleges that it was illegally wiretapped and says a document the government accidentally gave to its lawyers in 2004 bolsters its case.
The government said the document is a state secret and any further court action involving it would, even if accidentally, lead to security breaches. The government has asked King to dismiss the charity’s suit.
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In a hearing, King and the charity’s lawyers talked about ways to keep the suit alive without disclosing information about the classified document. Government lawyers resisted the idea.
King said at the end of the hearing that federal judges facing similar clashes between national security concerns and the rights of plaintiffs had tried to find ways around the problem, such as editing sensitive documents or having the sides agree on the facts of the matter.
“It seems to me the cases have instructed the courts to be original,” King told lawyers from the U.S. Justice Department. “I don’t hear that from you at all.”
Justice Department lawyer Andrew Tannenbaum said that U.S. National Intelligence Director John Negroponte had reviewed the Oregon case and determined that the government cannot confirm or deny information about intelligence-gathering without tipping its hand to terrorists.
“That very fact — whether they were subject to surveillance — is a privileged fact,” Tannenbaum said. He said that kind of judgment deserves “utmost deference.”
Lawyers for the Al-Haramain Islamic Foundation said that the domestic wiretap program had been made public, disclosed by journalists and then confirmed by President Bush.
All that remains now is to determine whether the surveillance without the approval of a special intelligence court was legal, they said.
The suit alleges the government listened in on conversations between a director of the group and two Washington, D.C., lawyers.
King also heard arguments from Charles Hinkle, a lawyer for The Oregonian newspaper, which has asked that the secret document be made public. He said there’s no secret anymore that there was surveillance, and there’s high public interest in illegal, unconstitutional activity on the part of the federal government.