Obama Sides With Bush in Spy Case
The Obama administration fell in line with the Bush administration Thursday
when it urged a federal judge to set aside a ruling in a closely watched spy case weighing
whether a U.S. president may bypass Congress and establish a program of eavesdropping on
Americans without warrants.
In a filing in San Francisco federal court, President Barack Obama adopted the same
position as his predecessor. With just hours left in office, President George W. Bush late
Monday asked U.S. District Judge Vaughn Walker to stay enforcement of an
important Jan. 5 ruling admitting key evidence into the case.
Thursday's filing by the Obama administration marked the first time it officially
lodged a court document in the lawsuit asking the courts to rule on the constitutionality
of the Bush administration's warrantless-eavesdropping program. The former president
approved the wiretaps in the aftermath of the Sept. 11, 2001, terror attacks.
"The Government's position remains that this case should be stayed," the
Obama administration wrote (.pdf) in a filing that for the first time made clear the new
president was on board with the Bush administration's reasoning in this case.
The government wants to appeal Walker's decision to the 9th U.S. Circuit Court of
Appeals in San Francisco, a legal maneuver requiring Judge Walker's approval. A hearing in
Walker's courtroom is set for Friday.
The legal brouhaha concerns Walker's decision to admit as evidence a classified
document allegedly showing that two American lawyers for a now-defunct Saudi charity were
electronically eavesdropped on without warrants by the Bush administration in 2004.
The lawyers — Wendell Belew and Asim Ghafoo — sued the Bush administration
after the U.S. Treasury Department accidentally released the Top Secret memo to them. At
one point, the courts had ordered the document, which has never been made public, returned
and removed from the case.
The document's admission to the case is central for the two former lawyers of the
Al-Haramain Islamic Foundation charity to acquire legal standing so they may challenge the
constitutionality of the warrantless-eavesdropping program Bush publicly acknowledged in
2005.
The Friday hearing is needed, because disputes with pretrial decisions generally
require the trial judge to permit an appeal.
The Obama administration is also siding with the former administration in its legal
defense of July legislation that immunizes the nation's telecommunications companies from
lawsuits accusing them of complicitity in Bush's eavesdropping program, according
to testimony last week by incoming Attorney General Eric Holder.
That immunity legislation, which Obama voted for when he was a U.S. senator from
Illinois, was included in a broader spy package that granted the government wide-ranging,
warrantless eavesdropping powers on Americans' electronic
communications.
A decision on the constitutionality of the immunity legislation is pending before Judge
Walker in a separate case brought by the Electronic Frontier Foundation.
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