Suit demands details on secret court's wiretap ruling
Group seeks to learn if program requires individual warrants
Bob Egelko, Chronicle Staff Writer
A privacy rights group sued the Justice Department late in February to
try to pry loose a ruling by a secret court that the Bush
administration says approved its clandestine wiretapping program.
The suit, if it succeeds, should answer an important question about
the future of the program: whether the court will require individual
warrants, with specific evidence, before allowing the government to
intercept phone calls and e-mails between Americans and alleged
terrorists in foreign countries.
In December 2005, President Bush confirmed a New York Times report
that he had authorized the National Security Agency four years earlier
to eavesdrop on such communications without obtaining warrants from
the Foreign Intelligence Surveillance Court, as required by a 1978
A federal judge in Detroit declared the program unconstitutional in
August, a ruling the administration has appealed. In San Francisco,
another judge is considering more than 40 lawsuits accusing
telecommunications companies of illegally collaborating with the
program by allowing the National Security Agency to intercept messages
and examine customer records.
The Electronic Frontier Foundation, a San Francisco organization that
represents AT&T customers in one of the lawsuits, sued Tuesday in
Washington, D.C., seeking disclosure of a pivotal Jan. 10 ruling by a
judge of the Foreign Intelligence Surveillance Court.
The ruling's existence was disclosed Jan. 17 by Attorney General
Alberto Gonzales, who told the Senate Judiciary Committee that the
judge had approved the surveillance, after lengthy negotiations, and
that the program was now operating under authority of the foreign
Gonzales did not say, however, whether the judge was requiring a
warrant in each case or instead had given overall approval to the
program. The attorney general has refused to make the order public,
although the Justice Department sent copies to the federal judge in
San Francisco and the appeals court reviewing the Detroit ruling.
The department also disclosed the order to selected members of
Congress, including leaders of the House and Senate judiciary
committees. Tracy Schmaler, spokeswoman for Senate Judiciary Committee
Chairman Patrick Leahy, D-Vt., said Leahy would like to see a
declassified version made public and is exploring the subject with the
Justice Department and the White House.
In Tuesday's lawsuit, the Electronic Frontier Foundation argued that the
public was entitled to learn details of the order under the Freedom of
"While national security and law enforcement demand a limited amount
of secrecy, Americans have the right to know the government's basic
guidelines for this kind of invasive electronic surveillance of their
personal communications," said David Sobel, a lawyer for the
By random draw, the case was assigned to U.S. District Judge James
Robertson, who resigned from the foreign intelligence court after the
December 2005 disclosure that the administration had been conducting
surveillance without court review.
Justice Department spokesman Dean Boyd said he couldn't comment on the
suit, but noted that orders of the foreign intelligence court have
historically been classified. The Jan. 10 order "contains very sensitive
information, including sources and methods'' of intelligence, Boyd said.
But Sobel said federal law prohibits agencies from keeping entire
documents secret if parts of them could be released safely. Whether
the foreign intelligence court will require wiretaps for each
surveillance is "the kind of question that could be answered without
compromising any national security interest," he said.
E-mail Bob Egelko at email@example.com.
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