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Federal Court Rules Warrantless Wiretap Illegal

By Tanya Roth, Esq. on April 02, 2010 | Last updated on March 21, 2019

This week, U.S. District Court Judge Vaughn Walker handed down a major decision in an illegal wiretap case dating back to 2006. Judge Walker found that the electronic surveillance of an Islamic charity and two of its American lawyers was illegal and the attorneys, Wendell Belew and Asim Ghafoor, have a right to pursue damages against the government.

According to the AP, plaintiffs Belew and Ghafoor claimed that their 2004 calls with the charity, Al-Haramain Islamic Foundation, were tapped without the approval of a warrant after the Treasury Department had declared the Oregon branch of the foundation a supporter of terrorism. Although the judge's opinion focused narrowly on the case at hand, plaintiffs' attorney Jon Eisenberg said that the judge had in essence, declared the whole Terrorist Surveillance Program to be unlawful. This was the last pending case (at the trial level) challenging the wiretapping program that ended in 2007.

The government argued that the case should be dismissed because of the potential for exposing continuing intelligence work. The AP writes that Attorney General Eric Holder presented Judge Walker with an argument outlining why the case should be dismissed which included classified information. This is a break from the Bush administration procedures which usually did not give judges this type of information. This is the first time the Obama administration has invoked the state secrets privilege in a court action.

In 2008, Congress set new rules for government surveillance which included immunity for telecom companies that had assisted the government in surveillance in the past. Judge Walker has upheld the constitutionality of these new rules, but that decision is being appealed.

The plaintiffs are seeking $1 million each, plus attorney's fees in the case. Judge Walker has ordered more legal arguments before he decides on the on possible damages.

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