After seven years of litigation spanning two appeals, an inadvertently disclosed top-secret document and a shredded banana peel, a case accusing the federal government of illegal wiretapping appears finally to be dead.
The U.S. Court of Appeals for the Ninth Circuit ruled Tuesday that U.S. District Judge Vaughn Walker of San Francisco had erred in awarding summary judgment — and $2.5 million in attorney fees — to the al-Haramain Islamic Foundation and two of its former lawyers for illegal surveillance. Walker’s mistake was ruling that the government had impliedly waived its sovereign immunity under the Foreign Intelligence Surveillance Act, Judge M. Margaret McKeown wrote for a unanimous Ninth Circuit panel.
Under FISA, “Al-Haramain can bring a suit for damages against the United States for use of the collected information, but cannot bring suit against the government for collection of the information itself,” McKeown wrote in al-Haramain Islamic Foundation v. Obama. “Although such a structure may seem anomalous and even unfair, the policy judgment is one for Congress, not the courts.”
McKeown further concluded that Walker had correctly ruled that al-Haramain, a now-defunct Islamic charity, did not state sufficient facts to sue FBI director Robert Mueller in his personal capacity.
Absent en banc or Supreme Court review, those two holdings effectively end the case, which made national headlines not only for the seriousness of the claims, but the cloak-and-dagger manner in which the case was litigated. It was originally based on a secret document inadvertently disclosed by the government to al-Haramain, but the Ninth Circuit ruled in 2007 that al-Haramain could not use it. Oakland attorney Jon Eisenberg, the driving force on al-Haramain’s side of the litigation since joining in six years ago, not only had to pursue the case without the document, but at times had to write legal briefs in a government office without notes or law books. At one point security guards shredded the peel of a banana Eisenberg ate during the visit.
Although the ruling wipes away the $2.5 million fee for Eisenberg and a handful of other lawyers who worked on the case, McKeown extended her sympathies. Regarding a government lawyer’s claim at oral argument that Eisenberg had played “games” with the litigation, McKeown wrote that “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.”
Eisenberg said Tuesday he appreciated McKeown’s kind words, “but I would have appreciated much more a decision that held President Bush accountable for the warrantless wiretapping program.
“I’ve been kicked in the teeth and won,” he added, “and come away a lot happier.”
The al-Haramain case began in 2004 during federal proceedings to classify al-Haramain as a Specially Designated Global Terrorist. During the process the government inadvertently leaked a document which may have corroborated suspicion that the organization and its lawyers had been wiretapped without a warrant. An Oregon federal judge ruled in 2006 that al-Haramain could file in camera affidavits attesting from memory to the contents of the document to support standing and make its prima facie case. The Ninth Circuit reversed in 2007, saying that the document fell under the state secrets privilege, but the court remanded the case to Judge Walker (where other wiretapping cases were pending) to determine whether FISA pre-empted the state secrets privilege.
On remand, Eisenberg put together other, nonprivileged evidence of surveillance and named Mueller personally while continuing to sue other government leaders in their official capacity.
Walker threw out the claim against Mueller, ruled that the government had impliedly waived sovereign immunity by adopting FISA, and awarded $20,000 in damages to al-Haramain attorneys Wendell Belew and Asim Ghafoor, plus attorney fees of $2.5 million. Al-Haramain was denied damages because of evidence it provided aid and support to terrorist organizations.
On Tuesday, McKeown noted that Walker didn’t have the benefit of the U.S. Supreme Court’s 2011 ruling on immunity, U.S. v. Cooper, which said that congressional waivers must be “clearly discernible from the statutory text in light of traditional interpretive tools.” If they’re not, “then we take the interpretation most favorable to the government.”
McKeown then noted that the relevant FISA section in the al-Haramain case, §1810, establishes liability for “any individual, including any officer or employee of the federal government, or any group, entity, association, corporation or foreign power.”
“Glaringly missing from the definition is the ‘United States,’” McKeown wrote.
Judge Harry Pregerson and Senior Judge Michael Daly Hawkins concurred.
Justice Department attorney Douglas Letter argued the appeal for the government.
Scott Graham is a reporter for
a Legal affiliate based in San Francisco.