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NSA wiretapping trial begins

The federal appeals court in San Francisco holds a hearing Wednesday about a case involving NSA call logs, which were inadvertently provided to lawyers for a Saudi charity.

By Staff writer of The Christian Science Monitor / August 14, 2007

Ashland, Ore.

It's hard – often impossible – to prove that secret government wiretapping in the name of national security is violating one's privacy rights. The evidence itself usually is top secret.

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But one rather obscure case could pull back the veil on a surveillance program that's at the heart of the US fight against terror. In the federal appeals court in San Francisco Wednesday, lawyers for a Saudi charity accused of helping Al Qaeda will argue that their clients, including two American attorneys, were illegally spied on without the required court warrant.

How do they know? Treasury Department officials inadvertently provided them with National Security Agency (NSA) call logs stamped "top secret."

By the time federal agents had retrieved the logs of recorded calls six weeks later, the information had been shared with five other lawyers, two officials of the Al-Haramain Islamic Foundation's US branch in southern Oregon, and a reporter with The Washington Post.

Because the government took back copies of the call logs, federal judges at the district-court level agreed to let those who saw them rely on their memory of what they saw as evidence. The judges also said that they have "standing" in federal courts – that they have enough of a case to sue the federal government.

If the appeals court agrees with the lower court, the US Supreme Court is likely to become involved. The case could have broader significance as well since it deals with presidential power during wartime.

"The difficulty in challenging any secret program is in proving that you were a victim of it," says Jon Eisenberg, a lawyer in Oakland, Calif., who represents the now-defunct US arm of the Islamic charitable foundation. "We have that proof, and that makes us unique."

In recent days, the American Civil Liberties Union (ACLU) and the Center for Constitutional Rights (CCR) have issued new challenges to the federal government's domestic spying program.

In another case at federal district court in San Francisco last week, the CCR, which represents hundreds of "enemy combatants" at Guantánamo Bay, Cuba, argued that the NSA's program of warrantless surveillance is unconstitutional.

"It is virtually certain that the NSA spied on our confidential communications with our clients as well as conversations with other American attorneys outside of the US," says Vincent Warren, CCR executive director.

Meanwhile, the ACLU last week filed legal papers with the Foreign Intelligence Surveillance Court (FISC) – the special court set up to decide whether such wiretaps are lawful and can be implemented – seeking the legal opinions upon which that court bases its decisions.

ACLU attorneys argue that the only thing known about those opinions has come from administration officials, and that those officials are not disinterested parties in a debate about the appropriate reach of executive branch surveillance.