The ruling said in 2004 the Bush Administration relied on the surveillance of phone conversations between two of the non-profit’s lawyers and an Al-Haramain director in Saudi Arabia, and that several months after the surveillance began it designated the group as a terrorist organization associated with Osama bin Laden, a description its leaders have called false.
The Foundation’s legal team sued the government in 2006.
The ruling Wednesday by Chief US District Judge Vaughn Walker of San Francisco rejected the Justice Department's claim — first asserted by the Bush administration and continued under President Barack Obama — that the charity's lawsuit should be dismissed because allowing it to go forward could reveal state secrets.
Judge Walker said the government’s warrantless wiretapping of the lawyers’ phones violated the Foreign Intelligence Surveillance Act, FISA.
Walker's reasoning struck at the heart of the program that President George W. Bush authorized after the terrorist attacks of Sept. 11, 2001, which allowed agents to intercept phone calls and e-mails between Americans and suspected foreign terrorists without a warrant, even though FISA, required warrants by the government to obtain advance court approval for each act of eavesdropping.
When Bush acknowledged the surveillance in December 2005, he claimed the power to override a 1978 law, passed in response to revelations of wiretapping of political dissidents.
The judge said Wednesday that Bush lacked that authority.
That "theory of unfettered executive-branch discretion" holds an "obvious potential for governmental abuse and overreaching," Walker said.
Al-Haramain's lawyer, Jon Eisenberg, said the decision amounted to a finding that the entire program was illegal. He said Walker's ruling was an "implicit repudiation of the Bush-Cheney theory of executive power…
"Everybody has to follow the law, including the president."
The Bush administration said it ended the program in mid-2008, but did not disclose the scope of that review. Neither Bush nor President Obama has revealed the extent of any continuing surveillance.
This means the ruling was also a rebuff to Obama. For although he criticized Bush's surveillance program while running for president, Obama's Justice Department has repeatedly sought to dismiss the Al-Haramain suit and fought any judicial review of the wiretapping program.
Since the case began, the Obama administration has ordered broader reviews before the state secrets privilege can be invoked.
The Obama administration now must decide whether to appeal the ruling and invite the first decision by a higher court on the validity of the surveillance program.
Walker said attorneys for the Al-Haramain Islamic Foundation, once based in Oregon, could pursue civil remedies for being subjected to warrantless domestic surveillance.
Eisenberg said his clients, Al-Haramain and the two lawyers would ask for the damages the law allows — $20,200 each, or $100 for each day of illegal surveillance — plus punitive damages and attorneys' fees.
