Foes of electronic spying may have a new way to challenge it

Foes of electronic spying may have a new way to challenge it

Bob Egelko, Chronicle Staff Writer

Saturday, November 24, 2007


Despite their latest court setback, challengers of President Bush's electronic surveillance program have another arrow in their quiver - a section of the same law that Bush spurned when he first ordered wiretaps six years ago.

The Ninth U.S. Circuit Court of Appeals in San Francisco decided an important issue in the administration's favor Nov. 16 when it ruled that an accidentally released government document, purportedly showing wiretaps of an Islamic charity on the government's terrorist list, was so sensitive that even a lawyer's recollection of it couldn't be used in court.

Without such evidence, the charity can't show it was harmed by the surveillance program. Ordinarily, that would leave it with no grounds to sue over the program's legality.

But rather than dismissing the suit, the court returned the case to U.S. District Judge Vaughn Walker in San Francisco and said he should decide whether Congress created an alternate route to challenge secret surveillance - a 1978 law regulating wiretapping of suspected foreign terrorists and spies.

That law, the Foreign Intelligence Surveillance Act, was prompted by a post-Watergate congressional investigation that found federal spy agencies had for decades conducted surveillance of political dissidents as well as security risk suspects.

The law requires federal agents to get a warrant for searches or electronic surveillance in espionage and foreign terrorism cases. It also allows federal judges to review, behind closed doors, people's claims that they have been the victims of illegal eavesdropping.

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