Al-Haramain v. Obama

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Al-Haramain v. Obama
Case Title Al-Haramain v. Obama
Date
Appealed
Personal Information
Taxonomy
Link to Ruling
Country/Jurisdiction United States
State or Province
Regulatory Bodies
Decided Yes
Arbitrator U.S. District Court for the Northern District of California
Related Laws Foreign Intelligence Surveillance Act of 1978

Short Summary

In Al–Haramain I, Al–Haramain Islamic Foundation and two of its lawyers (collectively “Al–Haramain”) “claimed that they were subject to warrantless electronic surveillance in 2004 in violation of the Foreign Intelligence Surveillance Act.”

Background

Without the Sealed Document, the Al–Haramain organization could not establish that it suffered injury-in-fact, and therefore did not have standing to bring suit. The issue is whether “FISA preempts the common law state secrets privilege.”

The district court held that “FISA preempts or displaces the state secrets privilege in cases within the reach of its provisions.”

The court acknowledged that “it is, of course true that section 1810 does not contain a waiver of sovereign immunity analogous to that in 18 U .S.C. section 2712(a) which expressly provides that the aggrieved persons may sue the United States for unlawful surveillance․” However, because “it is only such federal officers and employees acting in their official capacities that would engage in surveillance of the type contemplated by FISA,” the court feared that FISA would offer “scant, if any, relief” in the absence of a waiver. Id. Thus, it held that a waiver was “implicit in the remedy” under § 1810.

The district court dismissed the complaint with leave to amend the FISA claims, and Al–Haramain filed an amended complaint. The district court then concluded that "without a doubt” the amended complaint “alleged enough to plead ‘aggrieved person’ status so as to proceed to the next step in proceedings under FISA's sections 1806(f) and 1810.”. Moving to the merits, in its next ruling, “the court directed plaintiffs to move for summary judgment on their FISA claim relying only on non-classified evidence.”. Al–Haramain did, and the government filed a cross-motion to dismiss and for summary judgment. The court denied the government's motion to dismiss for lack of jurisdiction, rejecting the argument that Al–Haramain lacked standing because the program under which it was surveilled had been terminated, and once again holding that § 1810 waived the United States' sovereign immunity.

On the merits, the district court granted summary judgment in favor of Al–Haramain with respect to governmental liability under FISA. Al–Haramain then accepted the court's invitation to voluntarily dismiss the remaining claims “in order to take the steps necessary for the entry of judgment on the FISA claim.” The district court also dismissed claims against FBI Director Robert Mueller in his individual capacity.

In a follow-up order on remedies, the court first denied damages to the Al–Haramain organization because it was a “foreign power or an agent of a foreign power” under FISA's broad definition of that term, and therefore ineligible to recover damages under 50 U.S.C. § 1810. Furthermore, the district court denied punitive damages and equitable relief.

This case effectively brings to an end the plaintiffs' ongoing attempts to hold the Executive Branch responsible for intercepting telephone conversations without judicial authorization. However, we cannot let that occur without comment on the government's recent, unfortunate argument that the plaintiffs have somehow engaged in “game-playing.”

In early 2004, the Treasury Department announced an investigation of Al–Haramain Islamic Foundation, Inc. Then in late 2004, for the first time publicly alleged links to terrorism involving Al–Haramain. Also in 2004, the plaintiffs received a copy of a document from the Office of Foreign Assets Control (the “Sealed Document”), which may or may not have suggested certain of the plaintiffs or their lawyers had been electronically surveilled. In 2005, a New York Times article revealed that the National Security Agency “had obtained the cooperation of telecommunications companies to tap into a significant portion of the companies' telephone and e-mail traffic, both domestic and international.”1 Based on some or all of the above, the plaintiffs thought that they had been unlawfully surveilled, and in 2006 they filed suit.

Over the last six years, the plaintiffs have faced a moving and shrinking target. In 2008, Congress narrowed the list of potential defendants by granting telecommunications providers retroactive immunity. (describing 2008 amendments to FISA). Meanwhile, the evidentiary arsenal at the plaintiffs' disposal has been constantly in flux. On one hand, the Sealed Document was excluded, pending a determination whether the FISA preempted the State Secrets privilege in the telecommunications field. On the other, the public evidence favorable to the plaintiffs grew to include the FBI admitting to having used surveillance in connection with its investigation of Al–Haramain, the Treasury Department acknowledging it intercepted 2003 telephone conversations involving an Al–Haramain member, and top Executive Branch officials testifying before Congress that most modern international communications are wired.

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. Throughout, the plaintiffs have proposed ways of advancing their lawsuit without jeopardizing national security, ultimately going so far as to disclaim any reliance whatsoever on the Sealed Document. That their suit has ultimately failed does not in any way call into question the integrity with which they pursued it.

Decision

On the merits, the district court granted summary judgment in favor of Al–Haramain with respect to governmental liability under FISA. Al–Haramain then accepted the court's invitation to voluntarily dismiss the remaining claims “in order to take the steps necessary for the entry of judgment on the FISA claim.” The district court also dismissed claims against FBI Director Robert Mueller in his individual capacity.