Judge mulling Islamic charity wiretap lawsuit

SAN FRANCISCO — The Obama administration on Wednesday kept up its fight to toss out a lawsuit alleging illegal wiretapping, arguing that moving forward with the case would jeopardize national security.

U.S. Department of Justice lawyer Anthony Coppolino invoked the government’s so-called state secret privilege in urging U.S. District Court Judge Vaughn Walker to throw out the 5-year-old lawsuit filed by a now-defunct Islamic organization that the Treasury Department has listed as an official supporter of terrorism.

The Ashland, Ore., branch of the Al-Haramain Islamic Foundation filed the lawsuit in 2004 alleging that investigators eavesdropped on telephone conversations earlier that year without court approval.

President Bush acknowledged in 2005 that such a wiretapping program existed so that authorities could quickly set up eavesdropping operations on suspected terrorists. The administration subsequently ended the so-called Terrorist Surveillance Program.

Al-Haramain attorney Jon Eisenberg argued that the program was illegal because wiretapping can be done only with a judge’s approval.

“The president of the United States may not break the law in the name of national security,” Eisenberg argued in court Wednesday.

Lawyers for the Bush administration consistently argued that the case should be thrown out because “state secrets” would be divulged during the course of litigation, harming national security.

President Obama said during his campaign that it appeared the previous administration used the state secrets argument too often to eliminate lawsuits challenging national security policies. But in the Al-Haramain case, the Obama administration has made the same arguments employed by Bush administration officials.

“Foreign intelligence surveillance is so vital to national security that it is important for the government to maintain secrecy,” Coppolino argued Wednesday.

Hours earlier on Wednesday in Washington D.C., Attorney General Eric Holder announced that the Justice Department will continue to use the state secrets argument to fight existing lawsuits, but that the agency will try to curb the use of such claims in the future.

At the heart of the Al-Haramain lawsuit is a top-secret document that the Treasury Department accidentally turned over to foundation lawyers. The document allegedly shows government officials eavesdropping on phone calls between foundation executives and their lawyers.

The 9th Circuit Court of Appeals ruled in 2007 that the foundation couldn’t use the document as the foundation of its lawsuit. Foundation lawyers then revised their lawsuit and included several publicly available documents and speeches by government officials that they say shows Al-Haramain was the target of surveillance.

The judge is expected to issue a written ruling, though he has no deadline.