Metropolitan News-Enterprise


Wednesday, August 8, 2012


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Ninth Circuit Overturns Award Against U.S. for Wiretapping


From Staff and Wire Service Reports


The Ninth U.S. Circuit Court of Appeals yesterday overturned an order that the federal government pay the attorney fees of an Islamic group that claimed it was the target of the Bush Administration’s warrantless wiretap program.

It held, in an opinion by Judge M. Margaret McKeown, that U.S. then-District Judge Vaughn R. Walker of the Northern District of California (since retired) erred in awarding $40,800 in damages and $2.5 million to attorneys for the Ashland, Oregon, chapter of the now-defunct Al-Haramain Islamic Foundation. The foundation waged a nearly five-year legal challenge to the Bush administration’s Terrorist Surveillance Program.

The appeals court ruled that the federal government is immune to liability for such claims.

Implied Waiver

Walker had found that Congress, in enacting the Foreign Intelligence Surveillance Act (FISA), impliedly waived sovereign immunity. The act contains a civil liability provision, 50 U.S.C. Sec. 1810, which provides, in part:

“An aggrieved person,...who has been subjected to an electronic surveillance or about whom information obtained by electronic surveillance of such person has been disclosed or used in violation of section 1809 of this title shall have a cause of action against any person who committed such violation....”

Walker found that FISA would offer “scant, if any, relief” if sovereign immunity were not waiver and that a waiver was “[i]mplicit in the remedy.”

McKeown wrote:

“It is well understood that any waiver of sovereign immunity must be unequivocally expressed. Section 1810 does not include an explicit waiver of immunity, nor is it appropriate to imply such a waiver. Consequently, we reverse the district court’s judgment awarding damages and attorney’s fees to Al-Haramain under § 1810.”

She added:

“Congress can and did waive sovereign immunity with respect to violations for which it wished to render the United States liable. It deliberately did not waive immunity with respect to § 1810, and the district court erred by imputing an implied waiver.”

Plaintiffs Stages ‘Sideshow’

The court affirmed the dismissal from the action of FBI Director Robert S. Mueller III, who had been sued in his personal capacity.

“During the many years this case was litigated in the district court,” McKeown said, “Al-Haramain’s suit against FBI Director Mueller in his individual capacity was nothing more than a sideshow, overshadowed by the core claims against the government.”

She said the action against the FBI chief was “never vigorously pursued.” The jurist went on to declare:

“Al-Haramain’s bare-bones allegations against Mueller are insufficient to survive summary judgment. The allegations, in their entirety, consist of two simple statements: Mueller ‘threatened to resign because of concerns about the legality of the warrantless surveillance program;’ and ‘Mueller testified before the House Judiciary Committee that in 2004 the FBI, under his direction, undertook activity using information produced by the NSA through the warrantless surveillance program.’ These allegations do not appropriately allege a claim….”

Not a Sham

McKeown said the chapter’s lawyers, despite the U.S. Department of Justice’s assertions otherwise, filed a legitimate lawsuit and pursued it fairly and above board.

“This case effectively brings to an end the plaintiffs’ ongoing attempts to hold the executive branch responsible for intercepting telephone conversations without judicial authorization” McKeown wrote for the unanimous panel. “However, we cannot let that occur without comment on the government’s recent, unfortunate argument that the plaintiffs have somehow engaged in ‘game-playing.’ ”

McKeown noted that the lawsuit raised important questions about balancing national security interests with civil liberties after the Sept. 11 attacks. She scolded the government for suggesting the plaintiffs’ lawyers were interested in something else.

“In light of the complex, ever-evolving nature of this litigation, and considering the significant infringement on individual liberties that would occur if the Executive Branch were to disregard congressionally mandated procedures for obtaining judicial authorization of international wiretaps, the charge of ‘game-playing’ lobbed by the government is as careless as it is inaccurate,” McKeown wrote. “That their suit has ultimately failed does not in any way call into question the integrity with which they pursued it.”

‘Small Consolation’

Al-Haramain’s lawyer, Jon B. Eisenberg, said the judges’ kind words were “small consolation” and that he and his colleagues were discussing their next steps. They could ask the appeals court to reconsider the case or ask the U.S. Supreme Court to take it up.

“If this is the last word on warrantless wiretapping then it means that there will have been no accountability for it,” he said.

The Treasury Department froze the assets of the Ashland chapter and declared it a “specially designated global terrorist” on Sept. 9, 2004. Treasury officials believe the Ashland chapter delivered $150,000 overseas to support terrorist activities by the Chechen mujahedeen.

In investigating the chapter, Treasury officials accidentally turned over a document that Al-Haramain lawyers said appeared to be a top-secret call log. A judge later ordered the lawyers to turn over the document and barred them from using it to support their lawsuit.

Nonetheless, they used publicly available evidence such as speeches by FBI leaders discussing the case to convince U.S. District Judge Vaughn Walker that the Oregon organization was the subject of surveillance.

Since the Department of Justice refused to address the charges in the lawsuit directly, always arguing that to do so would threaten national security by exposing state secrets, Walker awarded damages and attorney fees to Al-Haramain.

McKeown said Walker erred.

Generally, government investigators are required to obtain search warrants signed by judges to eavesdrop on domestic phone calls, email traffic and other electronic communications. But Bush authorized the surveillance program shortly after 9/11, allowing the National Security Agency to bypass the courts and intercept electronic communications believed connected to al-Qaida.

Bush ended the program in January 2007.

The case is Al-Haramain Islamic v. Obama, No. 11-15468


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