Lawyers Say They Have Evidence of Warrantless Surveillance

July 18, 2007 — -- A case coming up before the 9th Circuit Court of Appeals may be the best chance for civil liberties lawyers to challenge the government's warrantless domestic surveillance program, attorneys say.

 Earlier this month, the 6th Circuit Court of Appeals in Ohio dismissed a challenge to the so-called Terrorist Surveillance Program because the plaintiffs, a group of lawyers, professors and journalists, could not show they had actually been put under government surveillance.

 If the court's reasoning is followed by other courts, it could doom the dozens of other similar pending cases where plaintiffs have no hard evidence that they were spied on under the top secret government program.

 But, in one case in Oregon, lawyers say they have actual proof that the government listened in on their clients' phone calls without a warrant, providing a chance to have the courts decide whether the surveillance program is unconstitutional.

 "This case presents the best chance of a court evaluating the legality of the surveillance program," said Curtis Bradley, a Duke University law professor and former State Department lawyer who studies national security law. "It may turn out that this is the only case that will be a vehicle for reviewing whether the government complied with" the Constitution and other laws governing eavesdropping.

The surveillance program, authorized by President Bush in 2002, allowed the National Security Agency to monitor communications between U.S. residents and people in other countries with suspected ties to al Qaeda. The top secret program was revealed by The New York Times in 2005.

 Al-Haramain Islamic Foundation, a now-defunct Islamic charity that the government says has ties to al Qaeda, says in court papers that the government accidentally gave it a highly classified document that shows the government monitored calls between the foundation's directors, who were overseas, and two of its lawyers in the United States. Those lawyers, Wendell Belew and Asim Ghafoor, are also plaintiffs in the case.

 Lawyers and the plaintiffs would not discuss the contents of the document, which is being held in a secure FBI facility in Portland, but Al-Haramain's court filings suggest that it is a National Security Agency phone log of those conversations.