NSA wiretap program declared illegal

The National Security Agency broke the law when it wiretapped two American lawyers working for the El-Haramain Charity Foundation, an influential judge ruled Wednesday.

The government is almost certain to appeal this long-awaited decision, as it touches on subjects ranging from the state secrets privilege to the breadth of President Bush's "Terrorist Surveillance Program."

The ruling is a major victory for civil libertarians, and the first time that the TSP has been declared illegal. The case from District Court Judge Vaughn Walker, the chief judge for federal courts in Northern California, to the 9th Circuit Court of Appeals, which rejected a government motion to dismiss it entirely.

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For months, the government argued that the charity could not possibly establish, using unclassified information, that it had been spied upon. It argued that even though the TSP had been revealed, it could not turn over other evidence in the case without jeopardizing national security. Several judges have seen the evidence and disagreed. People familiar with the case believe that the evidence relates to the mechanism by which the surveillance program was carried out: perhaps a third country, or private contractors, assisted the NSA.

So, the Justice Department asserted the "state secrets privilege" and refused to provide the plaintiffs with classified evidence that would show whether or not the charity had actually been wiretapped.

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Of course, this was a bit of a game, because the government accidentally gave the plaintiffs a number of classified documents which proved conclusively that the charity's phone lines were tapped by the National Security Agency.

Still, it was up to the charity to establish that its communications were intercepted solely on the basis of the public record -- and that the wiretapping was, on its merits, illegal.  The judge agreed today that both thresholds had been reached.

Walker, an inventive and creative judge who is also presiding over the trial about the legality of Proposition 8, was clearly skeptical of the government's contentions. Still, he went out of his way to give the government a chance to make its case. And he did not declare the use of the state secrets privilege to be invalid.