Last U.S. warrantless wiretapping case now closed
April 5, 2010
The last of a major warrantless wiretapping cases in the united States has come to an abrupt finish. Judge Vaughn Walker hearing the case formerly known as Al-Haramain vs Bush has ruled for the plaintiffs and against the U.S. government on a motion for summary judgment, essentially telling the government it had no case in the first place.
This case concerns the Oregon branch of an Islamic charity known as Al-Haramain, based in Saudi Arabia and the U.S. Department of Justice (DoJ) alleged to be an Al-Qeada financier.
Not only was it the last case to reach closure (the other warrantless wiretapping cases were short-circuited by the U.S. Congress, which granted immunity to the telcos involved) but it has been very bizarre right from the beginning of the trial.
This rare victory for civil libertarians followed years of obfuscation and wrangling on the part of both the Bush and the supposedly “open” Obama administration regarding the propriety of the deeply controversial warrantless wiretapping program, and the scope of the so-called state secrets privilege.
In a nutshell, the case survived so long simply because it was the only one that named the government as a defendant. All of the others had scrupulously avoided naming the government so that it would not intervene and invoke the state secrets privilege.
This is a privilege afforded to protect national security, and something that had been stretched beyond recognition by the previous Bush administration, and to a lesser extent, the Obama administration.
Against this backdrop, the Bush administration, with its color-coded threat levels and politically minded fearmongering, began to assert the privilege in the broadest possible way, by claiming that any litigation over the warrantless wiretapping program threatened national security.
It also waged a multiyear strategy of stalling what could not be pushed through Congress.
The Office of Foreign Assets Control, which largely deals with money laundering issues, had been investigating ties between Al-Haramain and associates of Osama Bin Laden.
It is a privilege that had already been controversial in many legal circles due to the fact that in the landmark Supreme Court case that largely defined it, United States vs Reynolds, the government had lied through its teeth.
The state also lied long afterwards, once the relevant documents were declassified and it later emerged that the government had sought to cover up run-of-the-mill negligence responsible for the deaths of several airmen.
In the course of that investigation, OFAC obtained records of NSA wiretaps of conversations between Al-Haramain and its lawyers. In the subsequent criminal proceeding, OFAC mistakenly turned over copies of the wiretap transcripts to the lawyers, who then filed suit in federal court under a section of the Foreign Intelligence Surveillance Act that allows for damages in a civil suit for violations of FISA.
The proceedings began in Oregon and were subsequently transferred to San Francisco, where they were consolidated with the other warrantless wiretapping cases that had already existed for more than five years.
Had the cases been tried in Virginia or Washington D.C., where the courts tend to toe the government line on national security matters, the outcome might have been very different. However, the Ninth Circuit in San Francisco held to a traditional, narrow reading of the privilege - namely, that it is evidentiary in nature and not grounds for throwing out litigation in its entirety.
Judge Walker has since scheduled a hearing to determine the exact nature and scope of the damages, which will probably be the end of one of the strangest cases in American jurisprudence.
Although the U.S. government under both Bush and Obama repeatedly ignored court orders, and the attorneys surveilled were prohibited from testifying even to their own recollection of the documents, it ultimately didn't matter anyway.
Since so much material about both Al-Haramain and the warrantless wiretapping program had already entered the public record, Judge Walker has now ruled that there is no disputed material fact in the case. In doing so, he granted a rare victory for civil libertarians against the national security state.
Other similar cases in this whole episode have already floundered on the shoals of what is known in the legal field as "standing" namely, the ability to assert an individualized harm in the face of government secrecy.
It turns out, that the government is not that good at keeping secrets, after all, a fact that proved its undoing in this case.
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