As we all know the government has a policy of wiretapping suspected terrorist group without getting court mandated approval. The wiretapping is super secret. Those who are wiretapped are not told even after the wiretapping is finished. We only know about the policy since George Bush admitted the existence of the wiretaps in 2005. The wiretaps, performed without judicial authority are probably illegal. Does the government stop using such wiretaps because I or numerous experts say it illegal–NO. How do you get the government to stop doing something illegal. Well hopefully they would stop if the court orders them to stop. After all not following a court order would be illegal. Does the government care–probably not. So who will sue the government. One of the fundamental rules of our jurisprudence is that only someone who is injured by an action can sue to stop it. Well certainly those that were wiretapped were damaged by the government’s policy. But the catch 22 is that the names of the victims of the government’s wiretapping are secret and therefore not available to sue the government.

But the government made a mistake. It accidentally released a document showing that the Ashland, Oregon branch of Al-Haramain Islamic Foundation was subject to a wiretap. Al-Haramain Islamic Foundation was a branch of a Saudi Arabia charity and according to the government a front for Al Qaeda. It is now defunct. It sued the government for damages resulting from the wiretapping. But to continue the Catch 22 the government got an order stating that the document accidentally release can not be used to prove standing. So now the government (with a straight face?) argues that Al-Haramain Islamic Foundation does not have standing even though everyone knows that the document proves that Al-Haramain Islamic Foundation does have standing.

Wednesday in the courtroom of U. S. District Court Judge Vaughn Walker in San Francisco the government argued that the case should be dismissed on the grounds that if the case goes to trial the parties will have to release government secrets in the discovery process and at trial. The state secrets privilege originated during the McCarthy era. Prior to the George W. Bush regime it was primarily used to ban the use of government secrets in a civil trial. But under Bush and Obama it has been expanded to allow the dismissal of entire cases, A bill introduced last year by Senators Kennedy, Leahy, and Spector would have limited the privilege to excluding state secrets from trial. The documents would have been presented to a judge in camara who could have excluded part or all of a document but who could not have dismissed a case because of the admission of a state secret.

During his campaign for president, Barrack Obama said. “warrantless surveillance of American citizens in defiance of (the 1978 law) is unlawful and unconstitutional.” Yet government attorneys argued that the case challenging the warrantless wiretapping of American citizens should be dismissed. Furthermore, also on Wednesday, the Attorney General released policies governing the warrantless wiretapping of American citizens. While the new policies strictly limit the use of wiretaps they continue to violate the law by allowing their use. The new policies are effective October 1 and therefore apparently do not affect the Al-Haramain Islamic Foundation suit against the government.

The government is apparently using the Al-Haramain Islamic Foundation suit to obtain a ruling that warrantless wiretaps in the name of national security are legal and that will be the precedent to support the new limited government policy allowing the Attorney General to order warrantless wiretaps in the future. Of course there is nothing to prevent the attorney general or his successor from modifying and broadening the policy in the future to allow even greater use of warrantless wiretaps.

As Jon Eisenberg attorney for Al-Haramain Islamic Foundation said, quoting President Obama “where’s the change we can believe in?”