In San Francisco last night, a federal judge threw out the one lawsuit over wiretapping that analysts believed actually had a chance of succeeding. Attorneys for Al-Haramain had received a classified document by mistake from the government that showed that the NSA had surveilled their conversations, but they returned it when requested. Judge Vaughn Walker disallowed the use of “recollection” of the document and, since the case was built on it, dismissed the lawsuit — for now:
A federal judge in San Francisco dismissed a lawsuit Wednesday that sought to prove President Bush acted illegally in 2001 when he ordered the wiretapping of phone calls between Americans and suspected foreign terrorists without court approval.
Chief U.S. District Judge Vaughn Walker said an Islamic charity on the government’s terrorist list could not use a crucial classified document – an accidentally released memo indicating the charity and its lawyers had been wiretapped – to show that it had been harmed by the surveillance program and thus had the right to challenge it in court. But the organization’s lawyer said he wasn’t giving up. …
Walker gave lawyers for the now-defunct charity, Al-Haramain Islamic Foundation, 30 days to file a new lawsuit relying on publicly available evidence to show it could reasonably believe it had been wiretapped.
Other suits challenging Bush’s wiretapping program have all been dismissed on the grounds that plaintiffs who suspected their calls had been intercepted had no way to prove it.
It’s easy to understand the reasoning the judge used in this decision. One cannot testify to the contents of a document without showing the document itself; while some forms of hearsay can be admissible, that’s not one of them. Since Al-Haramain based its case on a document it cannot produce, the judge had no choice but to dismiss, even in San Francisco. The plaintiffs can refile the suit, but absent any other evidence of surveillance, it’s a lost cause.
This will likely become moot next week. The compromise FISA reform bill includes a mechanism for telecom immunity for those companies who can show that they were assured of the legality of their cooperation. Those documents aren’t classified and can be produced in open court, and if they do get produced, it will provide a positive defense against the Al-Haramain lawsuit and all others.
That vote will provide more drama than just this particular lawsuit. The big question is whether Barack Obama will vote for the bill after he reversed himself last week and supported it after having opposed it earlier. If he does, the Left will eat him alive. If he changes his mind again, he risks getting painted as a dupe of the Left and a man lacking seriousness in the war on terror — and being in the minority of his own caucus on the issue. Judge Walker can’t rescue him from that choice.