Summary of Decision in Al-Haramain v Obama (March 2010) Says U.S. Charity's Phones Were Illegally Wiretapped

Printer-friendly version

In a decision leaving Attorney General Holder and others in the Obama administration scratching their heads for next steps, Chief Judge Vaughn Walker of the Northern Federal District of California ruled on March 31, 2010 that the Bush administration had illegally wire tapped phone conversations of an Islamic charity and two American lawyers without a warrant.

• Background

• Defendant's Motion to Dismiss
  

• AHIF's Motion for Summary Judgment
  

• Court's Ruling

 
Background

 
The decision in Al-Haramain v. Obama is the result of a four year old lawsuit on behalf of the Ashland, OR branch of the Saudi-based Al-Haramain Islamic Foundation (AHIF) and its two American attorneys, Wendell Belew and Asim Ghafoor. The government eavesdropped on a telephone conversation between the plaintiffs without first obtaining a special warrant under the Foreign Intelligence Surveillance Act (FISA). FISA was created by Congress to provide judicial and congressional oversight of covert surveillance activities of foreign entities and individuals in the U.S., while maintaining secrecy for national security. FISA makes it illegal to conduct wiretapping activities without a warrant approved by a special FISA court.

In the decision the court responds to three motions from both parties: First, the government's motion to dismiss the case because there is no claim for which the court can grant relief; Second the motion for summary judgment, which asks the court to decide the case before going to trial because the law and the facts are clear so there is no genuine issue to argue at trial; And third, the government's cross motion for summary judgment.

Defendant's Motion to Dismiss

After years of throwing every form of procedural roadblock at AHIF, the government, in a final effort to derail the court from deciding AHIF's request for judgment, again moved to dismiss the case, and the court, again, denied their motion. The government made its motion based on two arguments. First, AHIF lacked standing to obtain prospective declaratory or injunctive relief as a result of the Terrorist Surveillance Program (TSP) conducted by the National Security Agency (NSA), because the program terminated in 2007. Second, the section under which AHIF was suing did not expressly waive the sovereign immunity from suit that the government enjoys.

The court identifies these arguments as either substantially similar or the same arguments that the government has made in past, unsuccessful, motions and quickly rejects the government's arguments. The court states that the government's first argument is based on a mistaken premise that AHIF's request for relief was based on the continued existence of the TSP. However they requested relief that would correct both past and current harm, including a declaration that "defendants' warrantless surveillance of AHIF 'is' unlawful, and orders requiring the government to turn over or destroy information obtained by illegal surveillance. The second argument fails because the court reasserts its decision that section 1810 of the provision provides an implicit waiver of sovereign immunity, otherwise the section would provide hardly any relief for aggrieved persons.

AHIF's Motion for Summary Judgment

AHIF asked the court to decide whether they had standing to sue, and whether the government was liable under the FISA provisions. Walker stated that AHIF has standing because they met the minimum requirements to bring a suit under FISA, based on the twenty-eight public documents and two declarations as evidence submitted in support of the motion. He then stated that the burden was on the government to affirm or deny those charges. However the government did not submit anything to address AHIF's case, but instead challenged their ability to sue in the first place. Judge Walker determined that the government's claims have no merit.

The government's arguments were threefold:

• The Ninth Circuit had already decided that the AHIF, without classified material that had been deemed inadmissible, could not establish the standing to sue the government.
• AHIF could not commence the action because, in this particular case, government admission confirming or denying the existence of surveillance of AHIF was a matter of national security and inadmissible under the State Secrets Privilege (SSP).
• Evidence in this case is too tenuous to make a minimum case to sue the government under FISA.

The court responded to the government's first argument by discussing two crucial pieces of evidence that had not yet been discovered at the time the Ninth Circuit rendered its opinion. The Ninth Circuit's 2009 decision addressed the admissibility of a classified document that AHIF, at the time, believed was necessary to make a minimum case against the government and whether the action could proceed without the "document." In that proceeding, the court did not admit the document but did not dismiss the case and remanded it back to the District Court to allow AHIF to amend their complaint and present unclassified information to support their claim. 

AHIF then discovered a speech given by FBI Deputy Director John S. Pistole to the American Bankers' Association stating that in developing The Office of Foreign Assets Control (OFAC) case against Al-Haramain, "we used other investigative tools—like records checks, surveillance, and interviews of various subjects." They also found the congressional testimony of members of the Bush administration that explained how they intercepted communications when surveilling individuals, which is by electronic surveillance, governed by FISA. The court ruled in light of this new evidence AHIF could not be foreclosed from making their claim.

In response to the second argument, the court referenced the purpose of FISA. The statute was enacted specifically to create a judicial check for executive-branch abuses of surveillance. Under the defendants' theory, executive branch officials could treat FISA as optional and simply employ the SSP to avoid suit. Furthermore, the presence or absence of a FISA warrant is not defeated by the SSP in cases where the warrant was supposed meet provisions of FISA. The government had, but forewent, the opportunity to invoke the procedures Congress created in order for executive branch agencies to establish the legality of surveillance. Therefore, because the warrant was within the purview of FISA but did not conform to the procedures of the act, the government's argument fails and the SSP does not bar the claim.

The government's final argument simply challenged the evidence as not establishing that the government conducted warrantless electronic surveillance under the TSP. However, the court found that based on the exhibits presented there was enough evidence for AHIF to make the claim. This includes a memorandum from Howard Mendelsohn, Deputy Assistant Secretary at the Department of the Treasury to defendant Adam J. Szubin, Director of OFAC, dated Feb, 6, 2008. The document states that one of the directors of Al-Haramain was intercepted in four conversations by means of electronic surveillance. Another was the published speech by John Pistole to the American Bankers' Association described earlier, that admitted there was surveillance of Al-Haramain, OR. The court says that the government ignores the cumulative impact of these, as well as the other documents, and that the various pieces of evidence established a case for the AHIF.

Court's Ruling

The court ultimately denied the government's motion to dismiss and cross motion for summary judgment and granted plaintiffs' motion for summary judgment on the issue of the government's FISA violations. The court also ruled on the liability of one of the defendants, Robert Mueller III, named in both his professional and individual capacity in the lawsuit. The court concluded that the nature of his wrongdoing was established in his official capacity and dismissed the claim against Mueller in his individual capacity. The court, however, has not issued a final order. It is waiting for a submission by AHIF on their decision to proceed with other claims, or to dismiss those claims and proceed to a request for damages from the government on the FISA violation alone.