Ninth Circuit dismisses Islamic charity wiretapping suit

[JURIST] The US Court for the Ninth Circuit [official website] on Tuesday reversed [opinion, PDF] a lower court's decision in favor of an Oregon-based Islamic nonprofit corporation challenging the Bush administration's warrantless wiretap program. The US District Court for the Northern District of California [official website] held that the federal government implicitly waived sovereign immunity under Section 1810 of the Foreign Intelligence Surveillance Act (FISA) [LII backgrounder]. The court also awarded the Al-Haramain Islamic Foundation [JURIST news archive] $40,800 in damages and $2.5 million in attorney's fees and legal costs. District court Judge Vaughn Walker found [JURIST report] that the National Security Agency (NSA) [official website] warrantless wiretapping program violated the rights of organization under the FISA. Judge Margaret McKeown for the court of appeals, however, held that the lower court was wrong in its decision because Section 1810 of the FISA "does not include an explicit waiver of immunity, nor is it appropriate to imply such a waiver." With its decision, the appeals court also noted that the case raised an important issue of balancing national security and individual liberties:

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.

McKeown noted that the recent decision will end the continuous attempt by the organization to hold the government responsible for wiretapping without judicial authorization.

Al-Haramain filed a motion [JURIST report] for partial summary judgment in July 2009. In February of that year the Ninth Circuit affirmed the district court's ruling [JURIST reports] denying a government appeal to keep the NSA call log secret, despite its accidental release to Al-Haramain in 2004. The call log had been deemed a state secret [JURIST report], but the decision required the government to allow the foundation to view the document. JURIST contributor Victor Comras said that Walker had done a "truly remarkable job" balancing national security and due process [JURIST comment] in the case. Walker had previously dismissed the suit [JURIST report], finding that Al-Haramain lacked a cause of action because the state secrets privilege trumped procedural requirements under FISA.

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