Court Ruling Brings End to Lawsuit Against Bush Warrantless Wiretapping

by Kevin Gosztola 

The Ninth Circuit Court of Appeals has ruled against an Islamic charity that claimed it was the target of warrantless wiretapping by the National Security Agency when the Bush administration was in power. The ruling overturned the awarding of damages and attorneys’ fees to the charity, and found the government is immune to claims of warrantless wiretapping.

The now-defunct charity, the Al-Haramain Islamic Foundation, was investigated by the FBI in 2004 as the agency sought to determine whether it was a “terrorist organization.” In the process, the FBI engaged in warrantless wiretapping and listened in to telephone conversations the agency did not have a Federal Intelligence Surveillance Act (FISA) court order to authorize electronic surveillance. This eventually led to the FBI allegations that the charity was tied to Osama bin Laden.

Al-Haramain had a “sealed document” containing evidence that was relevant to their lawsuit but the government invoked the state secrets privilege to prevent it from being used in court. The 9th circuit ruled the government could claim state secrets, however, that could not be used to prevent the case from going forward and the case was sent back to a lower district court to rule on whether FISA could determine whether the government should be immune from warrantless wiretapping claims.

The US District Court for the Northern District of California heard the case and considered it under FISA. It then ruled in December 2010 that the US government had “to pay more than $2.5 million in damages and attorney’s fees to an Islamic charity for illegally wiretapping its conversations without a warrant.” The government appealed and today the 9th Circuit effectively prevented the government being held liable.

The decision indicates the court found that Congress did not include a waiver for “sovereign immunity” under FISA. Al-Haramain, the court concluded, could “bring a suit for damages against the United States for use of the collected information but not for “collection of the information itself.”  They found that FISA ”allows limitless information collection upon issuance of warrant, but limits use and dissemination of information.” While this might be “anomalous and unfair,” such a “policy judgment” was one for Congress to make and not the courts.

Jon Eisenberg, a lawyer for Al-Haramain, told the Los Angeles Times this “decision prevents citizens who have been wiretapped without a warrant from suing the government.” He declared, “There is no accountability…That is what is so distressful about this decision. It means that President Bush got away with it, and it means that President Obama will be able to get away with it and every president after him.”

It also permits the government to keep the scale of government wiretapping secret—a secret which courts like the 9th Circuit will subserviently protect from becoming public or being used against the government in any case alleging abuses of power.