In an Aug. 7, 2012 decision the Ninth Circuit Court of Appeals ruled that although the U.S. government violated the Foreign Intelligence Surveillance Act (FISA) when it wiretapped two American attorneys without court approval, it is protected from paying damages by the sovereign immunity doctrine. The case, Al-Haramain Islamic Foundation v. Bush, was filed in 2006 after the attorneys found records of the warrantless wiretap in documents the government provided in other litigation involving Al Haramain. In its ruling the court chastised the government for arguing “that the plaintiffs have somehow engaged in “game-playing.”

In March 2010, Chief Judge Vaughn Walker of the Northern Federal District of California ruled the government’s interception of telephone communications between Al-Haramain lawyers Wendell Belew and Asim Ghafoor to be “outside of the bounds of judicial scrutiny and in conflict with surveillance rules set by congress.”   Although the government argued that the document revealing the surveillance was protected by the state secrets privilege and therefore could not be considered, the district court ruled that there was sufficient independent evidence of the contents of the document for the attorneys to establish a claim. The sometimes bizarre behavior of the government’s attorneys is chronicled by Al-Haramain lawyer John Eisenberg in post.
In December 2010 the district court ordered the government to pay $20,400 in damages to each of the attorneys and $2.5 million in legal fees to their lawyers. The government appealed, saying that FISA did not explicitly waive sovereign immunity for illegal collection of communications. The Court of Appeals agreed, although it noted that illegal use of the information could lead to payment of damages.
The Circuit Court noted that its ruling “brings to an end the plaintiffs’ ongoing attempts to hold the Executive Branch responsible for intercepting telephone conversations without judicial authorization. However, we cannot let that occur without comment on the government’s recent, unfortunate argument that the plaintiffs have somehow engaged in ‘game-playing.’” It noted that Al-Haramain and its attorneys had “faced a moving and shrinking target” in its ability to establish the fact of the surveillance, since the court ruled the “Sealed Document” viewed by the two attorneys was protected by the state secrets privilege and therefore inadmissible as proof. However, the court noted that the FBI admitted “to having used surveillance in connection with its investigation of Al-Haramain, the Treasury Department acknowledging it intercepted 2003 telephone conversations involving an Al-Haramain member, and top Executive Branch officials testifying before Congress that most modern international communications are wired.”
The court concluded 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. 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.”