NSA Snooped on Lawyers Knowing Spying Was Illegal, Suit Charges: "Islamic charity lawyers contend they were spied on during a period in which the Justice Department refused to bless the government spy program. Their lawsuit may be the only one that can determine if the domestic spy program is legal.

[...]

The government's surveillance of two attorneys challenging the NSA's warrantless wiretapping of Americans took place partly during a period in which the top secret program operated without the approval of the Bush administration's own Justice Department, according to a newly filed court document.

The lawsuit, known as al-Haramain vs. United States, is the only one of more than 50 challenges to the program where the plaintiffs claim to have proof that they were the targets of the warrantless spying, based on a top secret document that had been briefly provided to them in a government paperwork snafu.

For that reason, the lawsuit was already seen as the most resistant to government efforts to protect the program. The allegation that some of the surveillance took place when the program wasn't authorized by the Justice Department may further complicate the government's defense.

"Part of our surveillance occurred when the Attorney General advised the president that the program was illegal," says plaintiff attorney Jon Eisenberg. "That deprives them of the defense they didn't know it was illegal."

According to Congressional testimony taken earlier this year, on March 10th, 2004, top Justice Department lawyers and White House officials held a tense showdown over the NSA spying program at the bedside of then-attorney general John Ashcroft in an intensive care unit. Ashcroft's resolve left the president's program without the Justice Department's stamp of approval for about two weeks, as the White House scrambled to tweak the program to meet Ashcroft's demands.

Attorneys in the al-Haramain case say the plaintiffs were spied on in March and April of 2004, during a period that encompassed that two week interregnum.

Already closely watched, the al-Haramain case became even more important to civil libertarians on Friday, when the U.S. 6th Circuit Court of Appeals dismissed a separate challenge by the ACLU, finding that the journalists and lawyers suing had no "standing" to sue the government, because they had no evidence they were specifically eavesdropped upon by the NSA.

While non-binding on other federal appeals courts, the 2-1 decision casts doubt on the prospects of the more than 50 suits against the government and telecoms now consolidated in federal courts in California, and gives the issue of standing new prominence. According to the decision, Americans can't sue to stop the secret government program unless they can prove they were secretly spied on. And since the program is classified, potential litigants have no recourse to get that proof from the government through legal process.

(Read Original Article - Via Wired News.)