Law

Court Rejects Obama Administration’s Attempt to Block Domestic Spy Lawsuit

By Jason Leopold

The 9th Circuit Court of Appeals in San Francisco Friday rejected an attempt by the Obama administration to use the state secrets privilege to block a lawsuit concerning the Bush administration’s domestic surveillance program.

Obama’s Justice Department, in legal arguments identical to those made by Bush administration officials, had sought an emergency stay and said national security would be at risk if the lawsuit proceeded.


In a one-page opinion, the 9th Circuit said it agreed with the “district court that the January 5, 2009 order is not appropriate for interlocutory appeal. The government’s appeal is DISMISSED for lack of jurisdiction. The government’s motion for a stay is DENIED [sic] as moot.”

U.S. District Court Judge Vaughn Walker ruled Jan. 5 that a classified document purportedly proving plaintiffs were under surveillance could be admitted into evidence and that the case could proceed. 

Jon Eisenberg, an Oakland-based attorney, sued George W. Bush, the National Security Agency (NSA), and other federal agencies, on behalf of two Washington DC-based lawyers who allege their telephone calls were illegally monitored by the NSA in March 2004. I interviewed Eisenberg on camera about the case two years ago.

The lawyers, Wendell Belew and Asim Ghafoor, appear to be the only American citizens who say they have hard evidence that proves the government spied on them.

Belew and Ghafoor had represented the Islamic charity Al-Haramain. The US Treasury Department accused the charity of funding al-Qaeda and in 2004 froze the organization’s assets. During the exchange of documents between Belew and Ghafoor and the Treasury Department in August 2004, the lawyers were sent a top secret document Eisenberg claims is evidence the attorneys’ phone calls with the Saudi director of Al-Haramain were monitored in violation of the Foreign Intelligence Surveillance Act, which requires the US government to obtain a warrant from a special court in order to spy on American citizens.

The top secret document the Treasury Department said it inadvertently gave to Belew and Ghafoor has since been retrieved by FBI agents and is being held in a secure facility in San Francisco. By law, Eisenberg is prohibited from discussing the specific contents of the document because it remains classified.

As the case made its way through the courts, the government asserted the “state secrets” privilege. Justice Department attorneys argued the case should be dismissed on grounds that national security would be at risk if details of the government’s warrantless surveillance activities against US citizens became public.

But an Oregon district court judge disagreed with the government’s position and said the case could proceed. The government appealed the ruling and the case landed at the Ninth Circuit Court of Appeals in San Francisco last month.

Eisenberg, one of the attorneys who represented Michael Schiavo several years ago in his battle with Congress and Florida Governor Jeb Bush to have his wife, Terri, removed from artificial life support, said the David vs. Goliath battle he has taken on could lead to the unraveling of the Bush administration’s warrantless spy program if the appeals court rules in favor of his clients.

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