District Court Limits the Use of State Secrets Privilege in Warrantless Wiretapping
By Kathryn Freund – Edited by Davis Doherty
Al-Haramain Islamic Found., Inc. v. Obama, No. 07-0109 (N.D. Cal., Mar. 31, 2010)
Memorandum of Decision and Order (hosted by Electronic Frontier Foundation)
The District Court for the Northern District of California granted summary judgment for the plaintiffs, the defunct Al-Haramain Islamic Foundation and the charity’s two attorneys, finding that they presented sufficient non-classified evidence to hold the government liable for electronic surveillance without a warrant in violation of the Foreign Intelligence Surveillance Act (“FISA”). 50 U.S.C. §§ 1801–71.
Chief Judge Walker rejected the government’s argument that the Executive can invoke the State Secrets Privilege (“SSP”) to conceal the existence of a FISA warrant, and thus preclude a case the Executive believes would compromise national security. Instead, the government bore the burden of proving the existence of a FISA warrant once the plaintiffs established sufficient evidence of electronic surveillance. The court argued that Congress enacted FISA to impose judicial review of surveillance that the Executive cannot avoid by invoking the SSP. In addition, Congress established a procedure under section 1806(f) allowing the government to show the legality of particular instances of surveillance — a procedure the government did not use in this case.
The San Francisco Examiner and Electronic Frontier Foundation provide an overview of the case and the Terrorist Surveillance Program under which the National Security Agency wiretapped Plaintiffs. The New York Times Editorial page views the court’s holding that FISA preempts the SSP as a step in the right direction in the fight against warrantless wiretapping. Wired questions whether the decision will be upheld if appealed. (more…)