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The federal government’s effort to keep a cloak over its once-secret domestic eavesdropping program gets more determined by the day. The 6th U.S. Circuit Court of Appeals, in a 2-1 vote, doomed a constitutional challenge to the Terrorist Surveillance Program (TSP) because the plaintiffs, a group of journalists, lacked standing to sue. But standing is not a problem in one of the dozens of other cases combined in a 9th Circuit appeal to be heard on Aug. 15, Al-Haramain Islamic Foundation Inc. v. Bush, No. 06-36083. The Ashland, Ore.-based charity Al-Haramain and its two Washington lawyers, Wendell Belew and Asim Ghafoor, allege that they know they were subject to the warrantless spying on phone and e-mail communication because the government accidentally gave them a 2004 phone log from the spy program. The government’s appeal in the 9th Circuit case argues that the state secrets privilege precludes disclosure of information needed to adjudicate the cases, and thus Al-Haramain and the lawyers can’t assert standing. Whether the government ever faces a court review of the constitutionality of the program may turn on the 9th Circuit’s view of the privilege. Separation of powers But if that hurdle is crossed, “in my view we win,” said Jon Eisenberg of Eisenberg & Hancock in Oakland, Calif., who represents the foundation, Belew and Ghafoor. “It becomes a separation-of-powers issue that was decided by the U.S. Supreme Court in 1952, Youngstown Sheet & Tube Co. v. Sawyer [343 U.S. 579],” Eisenberg said. “That ruling says the president has no inherent authority to disregard an act of Congress in the name of national security. It would take overruling Youngstown for the Supreme Court to say warrantless wiretap is lawful. “If the president can ignore an act of Congress on security, then he can ignore the courts and that gives him unlimited power that the founders would never have dreamed of conferring,” he said. Eisenberg’s view is bolstered by Judge Ronald Lee Gilman’s dissent in the 6th Circuit case, ACLU v. National Security Agency, No. 06-2095. Gilman said the closest question was standing in the ACLU case, in which journalists argued that newsgathering would be chilled by potential spying on domestic phone calls from foreign sources. “Once past that hurdle, however, the rest gets progressively easier,” he said. Based on the wording of the Foreign Intelligence Surveillance Act of 1978, providing the means for domestic electronic surveillance, “it becomes inescapable that the TSP was unlawful,” Gilman wrote. The Justice Department counters that the 9th Circuit cases can never even get to the standing question. Justice Department attorney Anthony Yang declined to comment, but in briefs he filed with the 9th Circuit, Yang said that dismissal is required because the foundation and its lawyers must have some state secrets to show standing, but the state secret privilege bars it. “Plaintiffs cannot establish standing, and the government cannot refute plaintiffs’ standing, without recourse to information protected by the state secrets privilege,” he wrote. Citing the case of Pentagon Papers leaker Daniel Ellsberg, who sued former Attorney General John Mitchell for spying, Yang said that the D.C. Circuit dismissed the suit based on the need for state secrets to show he was surveilled. Ellsberg v. Mitchell, 709 F.2d 51 (1983). Al-Haramain and its lawyers accidentally received a top-secret document during their litigation challenging the Treasury Department’s designation of it as a terrorist organization and freezing its assets. The charity and two directors were indicted in 2005 on charges of laundering $150,000 in donations to help Islamic fighters in Chechnya. The government dropped the charges the same year, saying the group is now an empty shell. In November 2004, the FBI demanded � and obtained � the return of the phone log, but Belew had already shared it with a Washington Post reporter, who also returned it. Eisenberg is still barred from describing or discussing it. But an Oregon federal judge said he would allow the plaintiffs to summarize their recollection of the document to show standing. According to published accounts, the alleged wiretap log covered March and April 2004, when former Attorney General John Ashcroft advised the president that the program was illegal.

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