Dispatches from the Creation Wars

We have a ruling in the Al Haramain case, the one involving an Islamic charity in Oregon that was the target of warrantless wiretaps by the Bush administration and could prove it because the government had mistakenly turned over documents showing that they had been illegally surveilled. You can read the full ruling here (PDF).

Judge Vaughan Walker granted summary judgment in favor of the plaintiffs, ruling that they had been illegally wiretapped without a warrant in violation of the Foreign Intelligence Surveillance Act. Crucially, the judge ruled that, “FISA takes precedence over the state secrets privilege in this case.” This is a very big blow to both the Bush and Obama administrations in their use of the state secrets privilege to prevent victims of illegal government activity from getting access to the courts.

The court now determines that plaintiffs have submitted, consistent with FRCP 56(d), sufficient non-classified evidence to establish standing on their FISA claim and to establish the absence of any genuine issue of material fact regarding their allegation of unlawful electronic surveillance; plaintiffs are therefore entitled to summary judgment in their favor on those matters. Defendants’ various legal arguments for dismissal and in opposition to plaintiffs’ summary judgment motion lack merit: efendants have failed to meet their burden to come forward, in response to plaintiffs’ prima facie case of electronic surveillance, with evidence that a FISA warrant was obtained, that plaintiffs were not surveilled or that the surveillance was otherwise lawful.

In the absence of a genuine issue of material fact whether plaintiffs were subjected to unlawful electronic surveillance within the purview of FISA and for the reasons fully set forth in the decision that follows, plaintiffs’ motion for summary judgment on the issue of defendants’ liability under FISA is GRANTED. Defendants’ motion to dismiss the amended complaint for lack of jurisdiction is DENIED and defendants’ cross-motion for
summary judgment is DENIED.

I haven’t had time to go over the full decision yet, which has several parts. Marcy Wheeler has, though, and she points out that basically the government refused to turn over any classified documents or try to defend itself on the legality of its actions. They invoked the SSP, which the court rejected.

Even after the plaintiffs’ attorneys had been given clearance to handle classified information, the government still refused to turn over any evidence in the case.

Walker is basically saying, “Well, government, if you won’t give us any evidence to prove you legally wiretapped al-Haramain, and given all the evidence they’ve presented proving they were wiretapped, then they win!”

Here’s his argument. The government had a way to defend against al-Haramain’s case directly, in camera, but they refused to avail themselves of it.

In FISA proceedings, 50 USC ยง 1806(f) provides a procedure by which the government may do this in camera, thus avoiding the disclosure of sensitive national security information. See In Re NSA Telecom Litigation, 564 F Supp 2d at 1131-35. Defendants declined to avail themselves of section 1806(f)’s in camera review procedures and have otherwise declined to submit anything to the court squarely addressing plaintiffs’ prima facie case of electronic surveillance.

Walker goes onto explain that, particularly given the government’s refusal to use the means by which Congress dictated that such review should be done, the government has a burden to prove it had a warrant to wiretap al-Haramain-a burden it has not met.

Very interesting ruling. A bit later, Marcy then wrote that she thinks Walker ruled in such a way as to force the government not to appeal the ruling:

I think Walker has crafted his ruling to give the government a big incentive not to appeal the case. Here’s my thinking.

As you recall, last year when Walker ruled that al-Haramain had standing and therefore its lawyers should get security clearance that would allow them to litigate the case, the government threatened to take its toys-or, more importantly, all the classified filings submitted in the case-and go home. After some back and forth, Walker instructed the parties to make their cases using unclassified evidence; if the government wanted to submit classified evidence, Walker said, then al-Haramain would have to be given clearance to look at and respond to the evidence. The move did two things: it neutralized the government’s insistence that it could still use State Secrets to moot Walker’s ruling that al-Haramain had standing (and, frankly, avoided a big confrontation on separation of powers). But it also forced the government to prove it hadn’t wiretapped al-Haramain illegally, since it had refused to litigate the case in the manner which Congress had required.

The government basically refused to play. It made no defense on the merits. Which made it easy for Walker to rule in al-Haramain’s favor.

That’s the big headline: that Walker ruled the government had illegally wiretapped al-Haramain.

But there were two more parts of the ruling that are important. First, Walker refused al-Haramain’s request that he also issue an alternate ruling, one that relied on his review of the wiretap log and other classified filings, that would amount to a ruling on the merits. He basically said that such a ruling would muddy up the record if and when this case was appealed.

He also dismissed al-Haramain’s suit against the only remaining individual named as an individual defendant, Robert Mueller.

These last two parts of the ruling are, I think, the big incentives Walker has given for the government to just accept this ruling.

If this ruling stands, al-Haramain will get a ruling that the wiretapping was illegal. The government will be directed to purge any records it collected from its databases (I’ll explain in a later post why I think this will present some problems). And it’ll be asked to pay a fine, plus legal fees. But the fines, at least ($100 per day per day of illegal wiretapping) might end up being a relative pittance-tens of thousand or hundreds of thousand of dollars. Sure, there will be punitive fines and legal fees for four years of litigation. But the government was happy to settle Hatfill and Horn for millions, why not have this be done for the same range of millions?

What al-Haramain won’t get-unless it litigates some of the other issues in the case, which likely can be dismissed with State Secrets-is access to what the government was doing. Or details of how it came to be wiretapped illegally.

I’m betting that the government will be willing to accept the ruling that it illegally wiretapped al-Haramain in exchange for the ability to leave details of how and what it did secret, leaving the claim of State Secrets largely intact.

I think she’s probably right. Al Haramain had something no other plaintiff has had in any similar case – proof that it had been illegally wiretapped. If no other plaintiff can show standing as they could, there’s little risk to the government of losing any further suits. And they’ll be more than happy to write a check to Al Haramain to make this case go away to keep their flexibility in future cases and not risk and appeals court or supreme court ruling on the broader issues. Which means this is a win, but not one that really matters much.