By David Sarasohn
April 08, 2010, The Oregonian

The lawsuit filed against the federal government in the case of al-Haramain, a no-longer-existing Islamic charity based in Ashland, last week provided a welcome endorsement of a powerful interest of Americans:

When you talk on the phone, should you remember to say hello to the folks from the government?

The case, which produced a trial court verdict last week, also demonstrated a couple of lessons worth bearing in mind:

1) All governments, of whatever party, find unconstrained power to be a great convenience.

2) There are two great bolsters for the rights of American citizens: an independent judiciary and government incompetence.

Luckily, you can often count on the second.

In 1978, Congress set up the Foreign Intelligence Surveillance Act court, to give the government judicial warrants for acts like secret national security wiretaps. The court has been notably cooperative, granting the warrants requested in virtually all cases, often after the wiretaps had already been conducted.

The government doesn’t have to ask first, but it’s considered polite if it asks at some point.

Still, the Bush-Cheney administration decided that it didn’t need no stinkin’ warrants. Presumably, this left its actions wide open to judicial challenge, except that if you were being secretly and illegally wiretapped, you might not know you were being secretly and illegally wiretapped.

And if you asked a judge to find out if you were being secretly and illegally wiretapped, the federal government would tell the judge that its actions were a state secret that couldn’t be revealed without endangering national security, and the judge would throw your case out.

So you couldn’t sue unless you knew you were being secretly wiretapped, and you couldn’t find that out because, after all, it was a secret. It was a kind of Catch-22 — or maybe, considering the federal government’s telephone area code, Catch-202.

And, although the Obama administration insisted it wouldn’t do any wiretapping without a warrant, it also had a fondness for the state secrets privilege.

“We hoped the Obama administration would be more friendly in the way it handled these cases,” said Lee Tien, a senior staff attorney at the Electronic Frontiers Foundation. “We were disappointed that it didn’t feel like we were litigating against different people (than the Bush attorneys).”

So al-Haramain’s chances would look bleak — except that its lawyers were accidentally given a document from the government’s Office of Foreign Assets Control, ever after referred to as the “Sealed Document,” revealing that al-Haramain had, in fact, been secretly wiretapped.

As Tien says, “How often are you ever going to know?”

Still, the Justice Department stuck to its insistence that the case should be thrown out because the wiretapping was a state secret — even though it was no longer a secret.

And that because it was a secret, the court shouldn’t ask about the warrant — and whether that existed was also a state secret.

In San Francisco, Judge Vaughn R. Walker, appointed by George H.W. Bush, wouldn’t buy it.

The government’s position “would require the court to impose a result contrary to the intent of Congress in enacting FISA,” wrote Walker.

By that thinking, “executive branch officials may treat FISA as optional and freely employ the (state secrets principle) to evade FISA, a statute enacted specifically to rein in and create a judicial check for executive-branch abuses of surveillance authority.”

So, he ruled, the feds had indeed violated the law, and al-Haramain was entitled to damages.

And the feds do have to get a warrant to wiretap somebody, just like the law says.

Because this is the court system, and this is a national security issue, it will be a long time before the case is finally resolved, maybe involving appeals by the government. But as of now, there’s a judicial decision declaring that when the law says the government needs a warrant to wiretap you, the government needs a warrant.

It was a longshot outcome. But sometimes, government lawyers make a mistake.

And sometimes, a federal judge doesn’t.