Suit Demands Details on Secret Court Wiretap Ruling

Suit demands details on secret court's wiretap ruling Group seeks to learn if program requires individual warrants

Bob Egelko, Chronicle Staff Writer

A privacy rights group sued the Justice Department late in February to try to pry loose a ruling by a secret court that the Bush administration says approved its clandestine wiretapping program.

The suit, if it succeeds, should answer an important question about the future of the program: whether the court will require individual warrants, with specific evidence, before allowing the government to intercept phone calls and e-mails between Americans and alleged terrorists in foreign countries.

In December 2005, President Bush confirmed a New York Times report that he had authorized the National Security Agency four years earlier to eavesdrop on such communications without obtaining warrants from the Foreign Intelligence Surveillance Court, as required by a 1978 law.

A federal judge in Detroit declared the program unconstitutional in August, a ruling the administration has appealed. In San Francisco, another judge is considering more than 40 lawsuits accusing telecommunications companies of illegally collaborating with the program by allowing the National Security Agency to intercept messages and examine customer records.

The Electronic Frontier Foundation, a San Francisco organization that represents AT&T customers in one of the lawsuits, sued Tuesday in Washington, D.C., seeking disclosure of a pivotal Jan. 10 ruling by a judge of the Foreign Intelligence Surveillance Court.

The ruling's existence was disclosed Jan. 17 by Attorney General Alberto Gonzales, who told the Senate Judiciary Committee that the judge had approved the surveillance, after lengthy negotiations, and that the program was now operating under authority of the foreign intelligence court.

Gonzales did not say, however, whether the judge was requiring a warrant in each case or instead had given overall approval to the program. The attorney general has refused to make the order public, although the Justice Department sent copies to the federal judge in San Francisco and the appeals court reviewing the Detroit ruling.

The department also disclosed the order to selected members of Congress, including leaders of the House and Senate judiciary committees. Tracy Schmaler, spokeswoman for Senate Judiciary Committee Chairman Patrick Leahy, D-Vt., said Leahy would like to see a declassified version made public and is exploring the subject with the Justice Department and the White House.

In Tuesday's lawsuit, the Electronic Frontier Foundation argued that the public was entitled to learn details of the order under the Freedom of Information Act.

"While national security and law enforcement demand a limited amount of secrecy, Americans have the right to know the government's basic guidelines for this kind of invasive electronic surveillance of their personal communications," said David Sobel, a lawyer for the organization.

By random draw, the case was assigned to U.S. District Judge James Robertson, who resigned from the foreign intelligence court after the December 2005 disclosure that the administration had been conducting surveillance without court review.

Justice Department spokesman Dean Boyd said he couldn't comment on the suit, but noted that orders of the foreign intelligence court have historically been classified. The Jan. 10 order "contains very sensitive information, including sources and methods'' of intelligence, Boyd said.

But Sobel said federal law prohibits agencies from keeping entire documents secret if parts of them could be released safely. Whether the foreign intelligence court will require wiretaps for each surveillance is "the kind of question that could be answered without compromising any national security interest," he said.

E-mail Bob Egelko at

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Bob Egelko, San Fran Chronicle
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