Judge Throws Out Wiretap Suit From Suspected Al Qaeda Charity

Back in 2004 the blundering government accidentally sent Al-Haramain, a charity designated having provided financial and material support to al Qaida and other terrorist organizations, a classified document supposedly indicating that the organization and two of its lawyers had been wiretapped. Excuse me, but when an organization has most likely provided funds to our enemy I would hope the government does keep an eye on them. Anyway, the charity returned the classified document to the government, but later they filed suit against our government with the cheering of the ACLU. They decided to rely on their memory of the document to pursue their lawsuit. The ACLU and other groups have filed several lawsuits challenging Bush’s wiretapping program, but they were all dismissed because the plaintiffs had absolutely zero evidence or standing and propped their entire cases on their paranoia alone. Civil liberty groups had high hopes for this case because it was the only case they had with anything resembling evidence. Their hopes were dashed today because a federal judge in San Francisco dismissed their case.

A federal judge in San Francisco dismissed a lawsuit Wednesday that sought to prove President Bush acted illegally in 2001 when he ordered the wiretapping of phone calls between Americans and suspected foreign terrorists without court approval.

Chief U.S. District Judge Vaughn Walker said an Islamic charity on the government’s terrorist list could not use a crucial classified document - an accidentally released memo indicating the charity and its lawyers had been wiretapped - to show that it had been harmed by the surveillance program and thus had the right to challenge it in court. But the organization’s lawyer said he wasn’t giving up.

“We will now be marshalling all the nonclassified evidence we have to make our case,” attorney Jon Eisenberg said. “We believe we can make a solid showing.”

Walker gave lawyers for the now-defunct charity, Al-Haramain Islamic Foundation, 30 days to file a new lawsuit relying on publicly available evidence to show it could reasonably believe it had been wiretapped.

Other suits challenging Bush’s wiretapping program have all been dismissed on the grounds that plaintiffs who suspected their calls had been intercepted had no way to prove it.

About 40 lawsuits against telecommunications companies that allegedly shared phone and e-mail networks and customers’ records with federal agents are also pending before Walker. The Senate, however, is scheduled to vote next week on legislation that would require dismissal of those suits.

The government inadvertently sent Al-Haramain a classified document in 2004 indicating that the organization and two of its lawyers had been wiretapped. The charity promptly returned the document at the government’s request but has relied on its contents to pursue its lawsuit.

Civil liberties groups had hoped that Al-Haramain, the only plaintiff in the nation with actual evidence of wiretapping, would be able to obtain a ruling on whether the taps violated constitutional standards and a 1978 federal law requiring a court warrant for any such surveillance.

Ed Morrissey weighs in:

It’s easy to understand the reasoning the judge used in this decision. One cannot testify to the contents of a document without showing the document itself; while some forms of hearsay can be admissible, that’s not one of them. Since Al-Haramain based its case on a document it cannot produce, the judge had no choice but to dismiss, even in San Francisco. The plaintiffs can refile the suit, but absent any other evidence of surveillance, it’s a lost cause.
This will likely become moot next week. The compromise FISA reform bill includes a mechanism for telecom immunity for those companies who can show that they were assured of the legality of their cooperation. Those documents aren’t classified and can be produced in open court, and if they do get produced, it will provide a positive defense against the Al-Haramain lawsuit and all others.

Too bad, so sad for the ACLU and their ilk. Out of the hands of the court and into the hands of the legislature where, no matter what happens, it belongs.

Don Surber compares headlines and exposes some spin.
Also see Michelle Malkin

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