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In a decision leaving Attorney General Holder and others in the Obama administration scratching their heads for what to do next, Chief Judge Vaughn Walker of the Northern Federal District of California ruled on March 31, 2010 that the Bush administration illegally wire tapped phone conversations of an Islamic charity and two American lawyers without a warrant.

The Case

The decision in Al-Haramain v. Obama is the result of a four year old lawsuit on behalf of the Ashland, OR branch of the Saudi-based Al-Haramain Islamic Foundation (AHIF) and its two American attorneys, Wendell Belew and Asim Ghafoor. In 2004, Belew and Ghafoor represented AHIF as one of the defendants in a suit filed by victims of the 9/11 attacks. The government eavesdropped on a telephone conversation between the two attorneys and an AHIF board member, Soliman al-Buthi, without first obtaining a special warrant under the Foreign Intelligence Surveillance Act (FISA). FISA makes it illegal to conduct wiretapping activities without a warrant approved by a special FISA court.

AHIF discovered the secret surveillance when it obtained documents from the Department of Treasury (Treasury) that accidentally included a classified document indicating the telephone conversations between the plaintiffs. Six weeks later, the government realized its mistake and sent FBI agents to retrieve the document, however two AHIF officials in Saudi Arabia retained their copies.

A copy of the document was filed with the original complaint, however in a subsequent decision by the Ninth Circuit Court in 2009, the document was excluded from the complaint entirely. After the District Court accepted an amended complaint without the document, Judge Walker ruled that there was no genuine issue to be decided at trial, and that AHIF succeeded on the merits of their claim.

The court now is waiting for a submission by AHIF on whether to proceed with the other claims in the case, or to dismiss the claims and proceed to a request for damages from the government.

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.

The Impact of the Case

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 administrations attempt to dismiss the lawsuit rather than deal with difficult questions of the legality of the TSP.  Many liberals 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”.

Now it remains to be seen, how the DOJ will proceed with the case, facing a very difficult decision to 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.

Foregoing appeal and leaving the decision on the record might prompt calls to begin a criminal investigation because it is a crime to violate the law requiring warrants.  However, if Attorney General Holder and the DOJ appeal, there is more than a chance a higher court will not agree with the government either.

Interestingly, there has also been discussion about the predicament that the government will be in, if it ultimately loses and must pay damages to Al-Haramain, a Specially Designated Global Terrorists (SDGT). There are questions whether the government can pay damages to a terrorist organization. If they can pay Al-Haramain, would that place the federal government in violation of the material support statute?