Ruling Foils Islamic Charity’s Wiretap Challenge
This article is from the archive of The New York Sun before the launch of its new website in 2022. The Sun has neither altered nor updated such articles but will seek to correct any errors, mis-categorizations or other problems introduced during transfer.
SAN FRANCISCO — A federal appeals court dealt a near-fatal blow today to an Islamic charity’s lawsuit alleging federal investigators illegally wiretapped it, saying a key piece of evidence the charity planned to use is a protected state secret.
A top secret call log that the Treasury Department accidentally turned over to the now-defunct American arm of the Al-Haramain Islamic Foundation’s lawyers can’t be used as evidence, the 9th U.S. Circuit Court of Appeals ruled.
Al-Haramain, which the American government labeled a terrorist organization, alleged it had been wiretapped by the Bush administration without a warrant. But without the call log, the court said, the foundation has little proof it was wiretapped.
The charity’s lawyers voluntarily turned over the document to FBI agents after it was given to them. A lower court ruled that the lawyers couldn’t use the actual document to support their lawsuit but could use their memories of its contents to go forward.
The appeals court said that ruling was “a commendable effort to thread the needle,” but still ran counter to the state secrets law, which precludes the disclosure of sensitive information in court that could jeopardize national security.
“Such an approach countenances a back door around the privilege and would eviscerate the state secret itself,” Judge M. Margaret McKeown wrote for the unanimous three-judge panel.
Justice Department officials and an attorney for Al-Haramain did not immediately return calls for comment.
The charity also had argued that warrantless eavesdropping of telephone conversations between its directors and lawyers violated the Foreign Intelligence Surveillance Act, which established a secret court to issue top secret surveillance warrants authorized by a judge.
The appeals court said that “the FISA issue remains central to Al-Haramain’s ability to proceed with this lawsuit.”
The court left the lawsuit alive, if barely, by sending it back to a trial court in Portland, Ore., to determine if the law governing the wiretapping of suspected terrorists trumps the state secrets law.
The appeals court has yet to rule on a related lawsuit that broadly challenges the Bush administration’s warrantless wiretapping program.
