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.
After the Treasury Department declared Al-Haramain a terrorist organization in 2004, the government wiretapped conversations between Al-Haramain’s two attorneys in Oregon and an Al-Haramain officer in Saudi Arabia. Al-Haramain learned of the surveillance when the government mistakenly sent a classified document detailing the wiretapping to the two attorneys. The plaintiffs originally based their claims against the government on this document, but the government successfully convinced the court to declare the document classified under the SSP. The plaintiffs’ amended complaint alleged warrantless electronic surveillance based on non-classified evidence.
The court rejected the government’s argument that sufficient evidence could only be shown by the sealed document, and held “[p]laintiffs must — and have — put forward enough evidence to establish a prima facie case that they were subjected to warrantless electronic surveillance” through public documents. The court also rejected the government’s argument that under SSP it did not have to produce a FISA warrant or otherwise show the wiretapping was legal. The court reasoned that under the government’s “overreaching” theory the Executive could “freely employ the SSP to evade FISA.” Chief Judge Walker went on to say the government could have used FISA section 1806(f) or produced a FISA warrant instead of relying upon the SSP to show the necessity of the wiretapping against the plaintiffs. Since the government failed to take either of these steps, the court concluded “there was no such warrant for electronic surveillance,” rendering the wiretapping illegal.
Al-Haramain is the first decision concerning evidence of specific surveillance of American citizens instead of the legality of the overall surveillance program. Since Al-Haramain was the last case from the Terrorist Surveillance Program that ended in 2007, and Congress passed amendments to FISA in 2008 allowing warrantless wiretapping, the holding of the case may have limited effect on other electronic surveillance cases. However, by holding that the government cannot invoke the SSP to avoid FISA requirements because the Act established judicial review, the decision may factor into the upcoming challenges of the 2008 amendments. The district court’s narrow construction of the SSP limits the Executive’s ability to invoke the doctrine to avoid FISA or judicial review of wiretapping.