A federal judge ruled the phone conversations of the charity with two of its American lawyers were illegally wiretapped. It is the only legal challenge to Bush-era illegal surveillance programs to survive in court because AHIF and its lawyers were able to show they had been subjected to unwarranted surveillance by using public records and statements. However, the appeals court ruled that although the government violated the Foreign Intelligence Surveillance Act, it was protected from paying damages by the sovereign immunity doctrine.
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.”
The appeal to the Ninth Circuit follows the March 2010 ruling by Chief Judge Vaughn Walker of the Northern Federal District of California that the phone conversations of an Islamic charity, Al-Haramain, and two of its American lawyers were illegally wiretapped without a search warrant. Judge Vaughn found that 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 salon.com 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 Ninth 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 Ninth Circuit 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.”Ninth Circuit court
The case was filed on behalf of the Oregon-based charity and two of its U.S. lawyers in February 2006, based on a series of events in 2004. It started when the attorneys, Wendell Belew and Asim Ghafoor, were representing Al-Haramain as one of the defendants in a suit filed by victims of the 9/11 attacks. In August 2004, they obtained documents from the U.S. Department of Treasury, including one indicating their telephone conversations with Al-Haramain board member Soliman al-Buthi, who was in Saudi Arabia, had been wiretapped. Six weeks later, after realizing its error, the government sent FBI agents to retrieve the document. However, two Al-Haramain officials in Saudi Arabia retained their copies.
Surveillance without a warrant violates the Foreign Intelligence Surveillance Act (FISA), which requires intelligence agencies to apply to a special court for authority to conduct surveillance of foreign powers or their agents, if there is probable cause to believe the information cannot be obtained through normal investigative methods. The complaint also alleged violations of the Constitutional requirement of separation of powers, the First Amendment’s guarantee of the right to petition the government for redress of grievances (by impairing their ability to get legal advice), and due process and undue search protections in the Fourth and Sixth Amendments. It also alleged violation of the International Covenant on Civil and Political Rights. Al-Haramain is one of dozens of lawsuits derived from the Terrorist Surveillance Program (TSP), which authorized warrantless wiretapping of United States citizens during the Bush administration, but is the only one to survive dismissal by the courts.
A copy of the document was filed with the original complaint in the case. The government then asserted that because the document is classified, it is subject to the “state secrets privilege” and cannot be used as proof in court. The state secrets privilege arose from a 1953 Supreme Court decision and provides that the government can withhold classified evidence in a civil suit, even if it means the case must be dismissed.
Because the document is classified, U.S. persons, including Al-Haramain’s attorneys, cannot reveal its contents without violating the Espionage Act of 1917. However, in a July 2008 blog post on Salon.com, Al-Haramain attorney Jon Eisenberg said “we assert the Document as proof of allegations we have made that in March and April of 2004 the National Security Agency conducted warrantless electronic surveillance of attorney-client communications between a representative of Al-Haramain and two of its attorneys…” He then described the progress of the case from there as “a bizarre journey” and “a tale directly from Government Secrecy Wonderland.”
Al-Haramains’ attorneys argued that the document is not a secret because they have seen it. In addition, the warrantless surveillance program was revealed by the New York Times in December 2005. The presiding judge ordered the document to be held in the FBI’s Sensitive Compartmented Information Facility where he could have unrestricted access to it. Al-Haramain’s lawyers were not granted access, but told they could use their clients’ memory of its contents to argue that they have standing to sue.
For the suit to proceed, plaintiffs had to show there was reasonable cause to believe they were injured, or have “standing.” For standing purposes FISA defines an “aggrieved party” as the “target of an electronic surveillance” or one “whose communications or activities were subject to electronic surveillance.” (50 USC 1801(k)) Nearly four dozen other cases challenging the legality of NSA’s warrantless surveillance program have been dismissed for lack of standing, because the plaintiffs were unable to produce the necessary evidence to demonstrate the privacy rights of U.S. citizens had been violated.
DOJ continued to argue that the Al-Haramain case should be dismissed because of the state secrets privilege, appealing to the Ninth Circuit Court of Appeals. In November 2007, the court sent the case back to the District Court to determine whether FISA’s provisions protecting “aggrieved persons” supersedes the state secrets privilege. In July 2008, the District Court held the FISA provisions govern, but required Al-Haramain to show it was an aggrieved party using non-classified evidence. Al-Haramain then filed an amended complaint using public record statements of various government officials to show it was targeted for warrantless surveillance. DOJ moved to dismiss and plaintiffs filed discovery motions to proceed with the case.
Treasury designated Al-Haramain as a supporter of terrorism in 2004, effectively shutting it down by freezing its assets. In a separate case, Al-Haramain has challenged the constitutionality of the designation process, saying it deprives charities of an opportunity to contest the basis of the designation. In November 2008 a federal court agreed, ruling that the process violated basic due process rights. The judge also ruled that the definition of “material support” of terrorists is constitutionally vague. The judge ordered further proceedings on the consequences of the due process violation.
District Court Ruling – January 2009
A Jan. 5, 2009 District Court ruling said Al-Haramain’s amended complaint “recites in considerable detail a number of public pronouncements of government officials about the Terrorist Surveillance Project (“TSP”)” and “a sequence of events pertaining directly to the government’s investigations of Al-Haramain Oregon.” These included an October 2007 speech by FBI Deputy Director John S. Pistole to the American Bankers Association and American Bar Association that was posted on the FBI website. In it he said the FBI used surveillance in connection with Treasury’s 2004 investigation of Al-Haramain.
DOJ had argued that the court could only allow Al-Haramain’s suit to proceed if the government admitted to the surveillance, which it has not done in court filings. The court disagreed, saying it must interpret FISA in a way that does not make the process for aggrieved parties superfluous. To do this, it said Al-Haramain’s non-classified evidence must establish a reasonable inference that the surveillance occurred in order to have standing to proceed to trial. DOJ said this approach would “open a floodgate of litigation”, but the court said this is unlikely, given the specific nature of non-classified evidence that must be filed by any plaintiff.
The court found that Al-Haramain had met the burden of showing evidence of surveillance, saying “The court declines to entertain further challenges to plaintiff’s standing….Plaintiffs have alleged sufficient facts to withstand the government’s motion to dismiss….to find Plaintiffs showing inadequate would effectively render those provision of FISA without effect, and outcome the court is required to attempt to avoid.”
However, contrary to erroneous press reports that indicated the court would now allow Al-Haramain’s attorneys to view the document (which they have already seen, and attached to the initial court filing), the court ordered that:
- The court itself would review the document ex parte and in camera, meaning in closed session and without the presence of Al-Haramain attorneys
- Based on this review, the court would determine whether the document establishes that Al-Haramain and its attorneys were subjected to surveillance “not authorized by FISA”
- Because classified material procedures require the court’s orders from this process to remain under seal, DOJ must provide for Al-Haramain’s attorneys to obtain security clearances to enable them to read sealed orders and participate in the case by “reading and responding to the court’s orders.” Otherwise, plaintiffs would be denied due process.
The judge gave DOJ until Feb. 13 to comply with the order. On Feb. 11, DOJ requested leave to file an interlocutory appeal to the Ninth Circuit. The court denied the motion and ordered DOJ to file information on how it would comply by Feb. 27. On Feb. 14 the San Francisco Chronicle reported that DOJ had denied security clearances to Al-Haramain’s attorneys, despite the fact that they passed FBI checks, saying they did not need to see the material.
DOJ immediately appealed back to the Ninth Circuit, requesting a stay of the District Court order. Al-Haramain opposed this action.
First Attempt to Appeal
On Feb. 27, 2009, the appeal was denied and the case was sent back to the District Court to proceed under the Jan. 5 order. A spokesman for DOJ, Charles Miller, said that the office would not comment on the ruling. However, following the appeals court ruling, the DOJ filed an emergency appeal notifying U.S. District Court Judge Walker that the government “is committed to the discretion of the Executive Branch, and is not subject to judicial review” and “plaintiffs’ counsel are not entitled to access the classified information in question.” Such an action has been deemed by critics as a breach of the Constitutional separation of powers by the executive branch. However, this position did not address the substance of the Jan. 5 order, which did not require the document to be given to Al-Haramain’s attorneys.
In what may be a more significant development, on March 6 Al-Haramain attorney Jon Eisenberg revealed in another Salon.com blog posting that DOJ lawyers filed a public document in the court notifying the judge that previous DOJ filings contained “an inaccuracy” that “cannot be set forth on the public record.” Eisenberg says “It appears that high officials in the Bush administration asserted a falsehood or falsehoods in their previous secret filings with the court, which the Obama administration is attempting to keep secret. What could that “inaccuracy” be? We haven’t a clue, because…..it’s secret!”
2010 District Court Ruling
The District Court’s decision in Al-Haramain v. Obama was the culmination of four years of litigation. The case marked the first time the Obama administration invoked the States Secret Privilege (SSP), a tactic often used by the Bush administration in lawsuits over various post-9/11 programs. Invoking the SSP over reasons of national security was the Obama administration’s attempt to dismiss the lawsuit rather than deal with difficult questions of the legality of the SSP. Many were outraged when the Obama administration adopted the same position as the Bush administration in the case, after Senator Obama declared as a presidential candidate that warrantless surveillance of Americans was “unconstitutional and illegal”.
The case presented the U.S. Department of Justice with a dilemma – risk an adverse decision on appeal from a higher court, which would make the decision binding on other courts, or pay damages to a terrorist organization in Al-Haramain.
Road to the Ninth Circuit
The case survived an attempt by the U.S. Department of Justice (DOJ) to have it dismissed because it claimed key evidence could not be used without threatening national security. On Feb. 27, 2009 the U.S. Court of the Appeals for the Ninth Circuit rejected DOJ’s request to stay a Jan. 5 ruling a federal District Court that allows the judge to view and consider the contents of the contested classified document to determine if the Al-Haramain Islamic Foundation (Al-Haramain) can proceed with its lawsuit.
The DOJ position disappointed opponents of warrantless surveillance and created the impression that the Obama administration is adopting the Bush/Cheney view of secrecy and executive power.
Question Regarding Damages
The District Court’s award of damages to AHIF raised a novel issue: can the government pay a damage award to a listed terrorist organization? Lawyers for AHIF proposed a novel solution, asking the court to turn over AHIF’s share of the damages to one or more other charities. The case is the only legal challenge to Bush-era illegal surveillance programs that survived in court, because AHIF and its lawyers were able to show they had been subject to surveillance by using public records and statements.
Under FISA, Al-Haramain and the lawyers are entitled to damages of $100 for each day of illegal surveillance (a total of 204 days). On April 16, 2010 they filed a proposed judgment asking for $20,400 per plaintiff under this formula. They also asked for punitive damages of $183,600 per plaintiff, citing the abuse of executive power involved. This is where the unusual problem comes up, since AHIF has been placed on the Specially Designated Global Terrorist list (That designation is also subject to legal challenge.) As a result, it is illegal for any U.S. person to have any transaction with it. As explained by Michael Isikoff in Newsweek’s Declassified column, “can the Justice Department pay money to a terrorist organization? And if it did, would it be committing the federal crime of providing material support to terrorists?”
The Justice Department is researching the question (and solutions), but AHIF offered a way out in its May 7, 2010 memorandum in support of its claim for punitive damages. It said, “In light of the fact that the government is currently holding AHIF’s assets in a blocked account, if the Court awards punitive damages to AHIF, plaintiffs will propose, upon the rendition of judgment, that in lieu of a transfer of those damages (and likewise compensatory damages) into AHIF’s block account the Court shall order their cy pres distribution to one or more other charitable organizations whose missions are ‘consistent with the nature of the underlying action.’” [p.16]
The cy pres doctrine is a well established equitable remedy used by courts when where (1) property is given in trust for a particular charitable purpose; (2) it is, or becomes, impossible, impracticable, or illegal to carry out such purpose; and (3) the [donor] manifested a more general intention to devote the property to charitable purposes.” (See Am. Jur. § 149 (2009); Rest. (Second) Trusts § 399.)
No Appeal to Supreme Court
The two attorney plaintiffs decided not to appeal the Ninth Circuit’s decision. A petition for rehearing was denied on Dec. 5, 2012. The attorney’s decision not to appeal, attorneys in the case said, was to limit the precedent set to the Ninth Circuit. Jon Eisenberg, the attorney for the two lawyers, said, “It would be a risky endeavor to take this case to this Supreme Court.” The appellate court’s decision remains binding only in areas covered by the Ninth Circuit, which includes Alaska, Arizona, California, Hawaii, Idaho, Montana, Nevada, Oregon and Washington. “Had the Supreme Court ruled against Eisenberg,” Wired reports, “a nationwide precedent would be set.”