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Federal judge rules executive privilege limited by FISA requirements

[JURIST] A judge for the US District Court for the Northern District of California [official website] Wednesday dismissed [opinion, PDF] a lawsuit brought by an Islamic charity that alleged it was the subject of an illegal wiretap by the National Security Agency (NSA) [official website]. The government argued that the NSA did not need to obtain a court order before eavesdropping on the al-Haramain Islamic Foundation [JURIST news archive] charity group because the state secrets privilege [JURIST news archive] trumped procedural requirements under the Foreign Intelligence Surveillance Act (FISA) [text; JURIST news archive], but US District Judge Vaughn Walker wrote:

Whatever power the executive may otherwise have had in this regard, FISA limits the power of the executive branch to conduct such activities and it limits the executive branch’s authority to assert the state secrets privilege in response to challenges to the legality of its foreign intelligence surveillance activities.
Even so, Walker found that the charity had not established that it had standing to sue, since it was blocked from introducing a leaked confidential call log [JURIST report] as evidence of the alleged wiretap. The New York Times has more.

The original lawsuit, filed [JURIST report] by the foundation in February 2006, alleged that the NSA illegally taped several conversations between the charity and its lawyers. In September 2006, lawyers for the US Department of Justice asked the US Ninth Circuit Court of Appeals to reverse a district court ruling [JURIST report] allowing the charity's lawsuit to proceed. Earlier that month, the lower court judge denied the government's motion to dismiss [opinion, PDF], rejecting arguments [JURIST report] that the proceeding would reveal state secrets.

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Paper Chase is JURIST's real-time legal news service, powered by a team of 30 law student reporters and editors led by law professor Bernard Hibbitts at the University of Pittsburgh School of Law. As an educational service, Paper Chase is dedicated to presenting important legal news and materials rapidly, objectively and intelligibly in an accessible format.

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