A federal judge who earlier rejected Bush administration claims that it was exempt from laws governing domestic surveillance was asked Tuesday to strike down an act of Congress that grants retroactive immunity for illegal wiretapping.
In a separate challenge of presidential power over national security affairs, lawyers for the now-defunct Al-Haramain Islamic Foundation asked the same judge in San Francisco to allow them to sue for illegal monitoring by the National Security Agency.
U.S. District Judge Vaughn Walker ruled in July that President Bush couldn't rely solely on state secrets privilege to justify warrantless spying.
Federal courts have tended to uphold Bush administration claims to broad wartime powers to protect the nation from terrorism, so Walker's decision offered civil libertarians a new chance to convince the courts that the president abused his powers in bypassing a special court that authorizes domestic spying.
The court created by the 1978 Foreign Intelligence Surveillance Act wasn't consulted before Bush ordered surveillance of Al-Haramain, a global charity suspected of Al Qaeda ties. Nor did the administration seek a warrant for NSA scrutiny of the phone and e-mail records of millions of U.S. telecommunications customers.
After the American Civil Liberties Union sued, alleging rights violations, Congress enacted the FISA Amendments Act to shield the telecom companies from the lawsuits.
In a class action against AT&T, the Electronic Frontier Foundation asked Walker to rule the FISA Amendments Act unconstitutional, saying that it violated individual privacy rights and granted excessive latitude for the attorney general to decide the legal responsibility of carriers that gave data to the NSA.
Justice Department lawyers reminded Walker that the congressional action was intended to shield the telecom carriers from liability for complying with government orders, and urged the judge to dismiss both challenges.
The ACLU action alleging that Bush overstepped his powers was dismissed by the Supreme Court in February, when the justices said that the rights group had failed to prove actual privacy violations.
In the Al-Haramain case, Oakland attorney Jon B. Eisenberg submitted what he said was abundant evidence that his clients' rights were violated, even without relying on evidence that the government had accidentally disclosed to them and then rescinded and sealed.
