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Ruling Hurts Case Against Wiretap Program

A federal appeals court in San Francisco ruled Thursday that memories of a classified document may not be used in a lawsuit against the government's warrantless wiretap program.

The case involves a now-defunct charity, the Al-Haramain Islamic Foundation, based in Oregon.

Lawyers for the group say the government tapped their phones and then mistakenly gave them a secret document which they say is evidence of the wiretapping. The government realized its mistake and took the document away.


Al-Haramain has been suing to have the warrantless domestic eavesdropping program declared illegal and a lower court allowed them to use memories of the withdrawn document as evidence. Without the evidence that their calls were monitored, the group would have no standing to sue.

A three-judge panel of the 9th Circuit federal appeals court has reversed the lower court decision, saying the group may use neither the document, nor memories of the document. The panel upheld the government's claim that the information was protected by the state secrets privilege.

Although the appeals judges ruled against a common law claim to the document, they did send the case back to the trial judge to review Al-Haramain's second argument that the Federal Intelligence Surveillance Act makes the wiretapping illegal and that it supersedes the state secrets privilege.

FISA allows plaintiffs who sue the government over wiretapping to use secret documents in court, as long as the documents are redacted to protect sensitive information.

From NPR reports


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