By Stephen Kopko

Impunity Watch Reporter, North America

SAN FRANCISCO, United States-On Wednesday a federal district court judge ruled that the Bush Administration’s use of the warrantless wiretap program may be illegal.  Judge Vaughan Walker found that the government may liable for civil damages for allegedly using the program against the al-Haramain Islamic Foundation.  Further, Judge Walker ruled that the government could not use the “state secrets privilege” in refusing to inform the organization whether the government used the program.

The warrantless wiretap program was used by the Bush Administration in the wake of the September 11, 2001 attacks.  It allowed the government to wiretap electronics and telecommunications of United States citizens deemed by the executive to have ties to terrorist organizations without a warrant.  Since the program was implemented, privacy advocates have challenged its constitutionality in the federal courts.  Until recently, privacy advocates were not successful in their attempts to show how the program is unconstitutional.  Invoking the state secrets privilege, the executive branch was successful in keeping secret who they were spying on.  According to the privilege, the government has the power to not provide classified information to certain organizations because doing so would threaten national security.  The program bypasses the government’s requirements under the FISA laws.  According to the FISA laws, a court approved warrant is required before the government can wiretap a person or organization’s electronics.

In the case before Judge Walker, the al-Haramain Foundation argued that they were illegally spied on by the United States government. The Foundation was designated as a terrorist organization.  It requested information on whether the government used the warrantless wiretap program against them. The government invoked the state secrets privilege not admitting whether or not it spied on the organization.   It also argued that the executive has the power to implement the warrantless wiretap program based on national security.

Judge Walker’s ruling rejected the government’s state secret’s defense.  Judge Walker found that the foundation provided enough declassified evidence to show they were illegally spied on by the United States government.  Therefore, the government may be liable for damages.  He also wrote that the FISA laws were “enacted specifically to rein in and create a judicial check for executive-branch abuses of surveillance authority.”  The government will decide in the next few weeks whether to appeal the ruling.

For more information, please see:

Christian Science Monitor-Bush wiretap program gets rebuke from federal judge-1 April 2010

NY Times-Ruling on Wiretapping Poses Challenge for Obama-1 April 2010

CNN-Government held liable in warrantless wiretapping case-31 March 2010