Electronic Frontier Foundation for one of lawsuits it brought against NSA warrantless wiretapping/Flickr Photo by EFF)

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.

The court opinion put it plainly, “This case effectively brings to an end the plaintiffs’ ongoing attempts to hold the Executive Branch responsible for intercepting telephone conversations without judicial authorization.” Yet, it was kind enough to wag its finger at the government for suggesting Al-Haramain and its lawyers had engaged in “game-playing” by pursuing this challenge. It mentioned how the charity had come to suspect it was subjected to unauthorized surveillance. It empathetically added, “Over the last six years, the plaintiffs have faced a moving and shrinking target. In 2008, Congress narrowed the list of potential defendants by granting telecommunications providers retroactive immunity.” There also was a “Sealed Document” that the plaintiffs could not use in the case, however, the FBI admitted to using surveillance. The Treasury Department “acknowledging it intercepted 2003 telephone conversations involving an Al-Haramain member, and top Executive Branch officials testifying before Congress” admitted “that most modern international communications are wired.”

Thus:

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. Throughout, the plaintiffs have proposed ways of advancing their lawsuit without jeopardizing national security, ultimately going so far as to disclaim any reliance whatsoever on the Sealed Document. That their suit has ultimately failed does not in any way call into question the integrity with which they pursued it.

The gesture is a nice one. It does not and will not change the fact that the only case against warrantless wiretapping that had been won on the merits has now been effectively muted and made inconsequential.

This is but another example of how the courts are extremely deferential to the Executive Branch and gutless when it comes to ruling on national security matters. For one, the “state secrets privilege” had already been invoked to give the Executive Branch cover from revealing details of warrantless wiretapping. What this ruling now does essentially is build off this cover. Now, even if citizens alleging abuse try to get around the government after state secrets is claimed, it appears there is little way to overcome the obstructions to justice created by the state secrets privilege.

Also, the manner in which the Treasury Department designated this Islamic charity a “terrorist organization” should raise additional alarm. A retired FBI agent quoted in an article by the New Yorker  admitted in 2008 that he “would have been ‘hard pressed’ to act on some of the material that Treasury officials used.” The article written by Patrick Radden Keefe, which examined the government’s invoking of the state secrets privilege, noted:

In addition, the Treasury Department may use classified evidence that is never disclosed to the designated party, despite an established principle of the American legal system that the accused should have an opportunity to confront evidence against him. Designations can be challenged before a federal judge, but lawyers for the designated party are not shown all the government’s evidence and cannot introduce their own. Nearly five hundred individuals and groups have been labelled Specially Designated Global Terrorists since 2001; there has never been a successful challenge in court. A designation “effectively denies people province over their own property in a largely unreviewable way,” Aufhauser, the department’s former general counsel, told me. “Such an extraordinary power needs to be exercised with discretion, because it could be constitutionally suspect.”

The charity is defunct. The charity is believed to have been a “terrorist organization” with no legal recourse available. The charity also was spied on but cannot collect any damages or attorneys’ fees for what was done. There is a possibility of appeal and taking the case to the Supreme Court but what chance does the case have of succeeding there after this ruling?

In conclusion, yet another Bush administration abuse of power has been shielded from accountability by the Obama administration. While there is a challenge moving through the courts now to NSA wiretapping, it is not against Bush warrantless wiretapping. The challenge is against warrantless wiretapping under the FISA Amendments Act, which citizens of America are expected to believe fixed the NSA spying program so it no longer violated the privacy rights of Americans. So, this was essentially it for holding Bush officials accountable (and why people like James Bamford, Thomas Drake, Ray McGovern, Coleen Rowley and Ann Wright had supported the lawsuit).

Bush administration officials involved in ordering warrantless wiretapping should be well on their way to becoming convicted felons. The Obama administration and Justice Department disagree. So, in addition to the decriminalization of torture, the Obama administration can now also celebrate the decriminalization of warrantless wiretapping as its leader prepares for the final months of his campaign for re-election.