District Court Finds FISA Preempts State Secrets Doctrine; Government Wiretap Litigation To Continue
By Anna Lamut – Edited by Andrew Ungberg
Al-Haramain v. Bush, No 06-1791 VRW,
District Court for the Northern District of California, January 5, 2009
On Monday, January 5, 2009, Chief Judge Vaughn* Walker of the United States District Court for the Northern District of California denied the U.S. government’s third motion to dismiss the Al-Haramain v. Bush litigation, in which the Al-Haramain Islamic Foundation sued the Bush administration for illegal surveillance of the organization. The original suit was based on an inadvertently revealed, top-secret government call log which indicated Al-Haramain had been the subject of wiretapping. However, the case was nearly dismissed after the court found the log to be a state secret, and thus would not be admissible due to national security concerns. Al-Haramain claimed the document showed the organization was subject to surveillance outside of the scope of the Foreign Intelligence Surveillance Act (FISA).
Ed Brayton of Scienceblogs states that this case may finally end use of the secrets privilege as a means of avoiding all judicial scrutiny of the NSA’s wiretapping program.
Julian Sanchez of Ars Technica points out that the suit is unique in that the Electronic Frontier Foundation, whose attorneys represent the Foundation’s directors, does not normally represent clients who they know were targeted by the NSA for warrantless surveillance. Sanchez also notes that in the opinion, Chief Judge Walker pointed out that in writing the FISA, Congress would not have provided for in camera review of classified documents if it meant to allow the government to use the state secrets provision in each case.