This will be big news to those of you following the al-Haramain trial.
In a nutshell, The Obama Administration has followed the Bush Administration lead to cover up illegal wiretapping, arguing that because of "state secrets" American Citizens who were illegally wiretapped have effectively no legal grounds for redress. They have been fighting several lawsuits, but today suffered a setback.
A federal appeals court in San Francisco has just rejected the Bush/Obama argument and a Circuit Court judge overseeing the case will be the first person outside the executive Branch to review documents alleged to prove illegal wiretapping.
This from the Times article on the ruling:
The Obama administration has lost its argument that a potential threat to national security is a good enough reason to stop a lawsuit challenging the government's warrantless wiretapping program.
A federal appeals court in San Francisco on Friday rejected the Justice Department's request for an emergency stay. The Obama administration, like the Bush administration before it, cited the so-called state secrets privilege as its defense. The government claimed national security would be compromised if a lawsuit brought by the U.S. chapter of an Islamic charity was allowed to proceed.
For indepth coverage, Go read Marcy and Bmaz over at Emptywheel.
But below is the background:
The FISA revision passed last year gave immunity to those who participated in illegal wiretapping. But the question remains as to whether it is constitutional to deny recourse to those who suffered damages from being illegally wiretapped.
If a party could prove they were illegally wiretapped, then they might be able to convince a judge to protect their constitutional rights.
Whereas our elected representatives elected not to protect the Constitution (and granted this retroactive immunity), Accused Terrorists and their lawyers are trying like hell to do just this.
And George Bush, Alberto Gonzales, Dick Cheney, David Addington and their enablers in Congress are in a heap of trouble with a federal court.
Here is the Background:
The al-Haramain Islamic Foundation, a Saudi organization that once operated in Portland, Ore., filed a description of classified government records in a lawsuit Tuesday and immediately asked a judge for a private review.
According to a source familiar with the case, the records indicate that the National Security Agency intercepted several conversations in March and April 2004 between al-Haramain's director, who was in Saudi Arabia, and two U.S. citizens in Washington who were working as lawyers for the organization.
The government intercepted the conversations without court permission and in violation of the law, al-Haramain asserts in its lawsuit. It contends that eavesdropping on the conversations bypassed the Foreign Intelligence Surveillance Act, the 1978 law that requires the government to show probable cause that a U.S. resident is an agent of a terrorist group or foreign government and to obtain a warrant from the secret FISA court before monitoring that person's calls.
al-Haramain accidentally saw the documents that showed they had been wiretapped without a warrant.
But the Government took the documents back and refused to release the documents for discovery to the court. No one outside the Bush Administration has access to the documents.
So the Government has argued and the court has questioned whether al-Haramain has standing to sue George Bush for the illegal wiretapping.
And yes the wiretapping was illegal under FISA. Remember Jim Comey's testimony before the Senate Judiciary Committee on May 15, 2007?
On May 15, 2007, James Comey gave an uninterrupted description of what happened on Wednesday, March the 10th, 2004. James Comey revealed an incredible, late-night, clandestine attempt by Alberto Gonzales and Andrew Card to get a signature from critically ill John Ashcroft. The point of this secretive mission was to get the disoriented Ashcroft to sign-off on the warrantless wiretapping program, circumventing the Acting Attorney General, James Comey. Comey had refused to sign off on the plan as "without legal basis". Although why the program was not legal is still a mystery, many have surmised it was probably because the technology was permitting monitoring of US citizens, in contradiction of FISA law.
So who signed off on the Illegal Program? Not the Attorney General, as required by executive order... The President's Counsel, Alberto Gonzales signed the order....
For several weeks, the illegal program continue under ONLY ALBERTO GONZALES's signature. Thus the illegal program was in place prior to the hospital showdown, but it was KNOWINGLY continued illegally after March 10, 2004 when Comey refused to sign off on it.
Because of the 9th Circuit ruiling, for the first time, the Court will review the evidence that the Administration was acting illegally. The documents will no longer be hidden within the Administration. As per Walker's prior statement:
"To be more specific, the court will review the sealed document ex parte and in camera. The court will then issue an order regarding whether plaintiffs may proceed — that is, whether the sealed document establishes that plaintiffs were subject to electronic surveillance not authorized by FISA."
Will they really find illegality?
The al-Haramain lawyers are pointing out dates when the wiretapping occurred when it was illegal (before March 10, 2004) and knowingly illegal and in violation of executive orders (after March 10, 2004):
Soon after the blocking of plaintiff Al-Haramain Oregon’s assets on February 19, 2004, plaintiff Belew spoke by telephone with Soliman al-Buthi (alleged to be one of Al-Haramain Oregon’s directors) on the following dates: March 10, 11 and 25, April 16, May 13, 22 and 26, and June 1, 2 and 10, 2004.
Again, go read emptywheel for more detailed, beautiful, insights into the meaning of this ruling....
Summary
Because of the ruling, Judge Walker will now read the documents. Hopefully he will come up with a few ideas to keep Obama's new Attorney General occupied....