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Judge Nixes Law Firm’s Warrantless Wiretap Suit

SAN FRANCISCO (CN) - Fear of government eavesdropping is not a sufficient constitutional injury, a federal judge ruled, throwing out the claims of a law firm that had claimed it was illegally spied upon by a government-sponsored wiretapping program initiated in the wake of Sept. 11.

The Center for Constitutional Rights and its clients, some of whom are Muslim foreign nationals detained after Sept. 11, said they were prevented from exercising their First Amendment rights by the National Security Agency's Terrorist Surveillance Program, which intercepted phone calls and other forms of electronic communication without a warrant.

The center claimed that fear of government wiretap drove it to use extreme caution in communicating with clients, but Chief U.S. District Judge Vaughn Walker found the center "did not produce ... any evidence that they were actually surveilled under the TSP."

"Instead, plaintiffs limit their evidence and argument to the claim that their constitutional rights were 'chilled' by the mere risk that they were surveilled under the TSP," Walker wrote.

The judge rejected the center's argument that it was unable to communicate with clients as much as it desired because of the program, in turn negatively affecting its litigation abilities.

"Plaintiffs' declarations describe at length the disruption to their operations resulting from their inability to use quick and efficient electronic communications," the ruling states. "Even assuming (without deciding) that such fears and measures were reasonable and that such an injury is sufficiently concrete to confer standing, the TSP cannot provide a justification for continuing to incur such costs." (Parentheses in original.)

Walker found the mere risk of being wiretapped "insufficient to establish injury in fact" for standing.

"Even if the possibility of harm in this case were sufficiently concrete to constitute injury in fact, the injury claimed by plaintiffs is not itself cognizable under the First Amendment," the ruling states. "Although litigation is unquestionably protected by the First Amendment when it is used as a means of political expression and advocacy, the First Amendment does not protect against every conceivable burden or difficulty that may arise during litigation."

In a ruling last December, Walker refused to award punitive damages to a defunct Islamic charity that claimed to have been illegally wiretapped, but granted two other plaintiffs $20,400 in liquidated damages and $2.5 million in attorneys' fees.

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