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Domestic spying laws to be tested in court

Stephen Elliott Contributor

The Obama administration will argue Friday in a federal appeals court that the government may break domestic spying laws implemented after the Watergate scandal, Wired reports.

In the wake of the September 2001 terror attacks, President George W. Bush authorized a warrantless domestic espionage program, as revealed in a 2005 New York Times report. In 2010, a federal judge ruled that two American lawyers’ telephone conversations with clients in Saudi Arabia were recorded without a warrant by the National Security Agency in 2004 under Bush’s program.

The government mistakenly mailed a classified document to the two lawyers, who are a part of the al-Haramain Islamic Foundation. The lawyers used the document as evidence in their allegation against the government, but the document was eventually declared a state secret and removed from the case.

San Francisco U.S. District Court Judge Vaughn Walker awarded the two lawyers more than $2.5 million based mostly on circumstantial evidence that the government had spied on them without a warrant, the first time anyone had succeeded in a lawsuit challenging the government’s warrantless domestic spying.

The government has appealed Judge Walker’s ruling to the 9th U.S. Circuit Court of Appeals, with the court set to hear arguments Friday. The government will likely cite the 2008 amendment to the Foreign Intelligence Surveillance Act of 1978, which was enacted as a result of Watergate. The 2008 amendment granted retroactive immunity for past domestic spying transgressions on the part of the government.

Cindy Cohn, the legal director for the Electronic Frontier Foundation, which has filed a friend-of-the-court brief for the case, wrote, “The dangers of allowing the executive unfettered power to use the state secrets privilege to turn the Constitution on and off at will are plain and strike at the heart of our constitutional system of government.”

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