A defunct Islamic charity has won its closely watched lawsuit over the Bush administration’s warrantless wiretapping program, a federal judge ruled today.
In his 45-page decision, Judge Vaughn Walker ruled in favor of the Al-Haramain Islamic Foundation and two of its attorneys, who had claimed that they were the subject of illegal surveillance by the government in 2004. The judge found that public documents and statements by government officials established that the government violated the Foreign Intelligence Surveillance Act of 1978 when it intercepted communications related to Al-Haramain.
The import of the judge’s ruling could be tempered, however, by the fact that the government refused to produce any substantive evidence in the case and insisted that doing so would expose state secrets.
The ruling further escalates a legal confrontation that has put the Obama administration in the awkward position of defending against lawsuits over a surveillance program candidate Barack Obama sharply criticized and many Obama appointees branded as illegal before they took office.
The Al-Haramain case has a serpentine history involving the apparently accidental disclosure to lawyers for the group of top-secret evidence of the alleged wiretaps. The government took the document back and an appeals court later ruled that neither the classified document nor any testimony about it could be introduced to support the lawsuit.
However, the appeals court left open the possibility that if a violation of FISA could be proven without classified evidence the suit could go foward.
Walker ruled that the government’s refusal to say whether a FISA warrant was issued to intercept the communications involving Al-Haramain meant that, for purposes of the lawsuit, the government had admitted no such warrant existed.
Defendants’ possession of the exclusive knowledge whether or not a FISA warrant was obtained, moreover, creates such grave equitable concerns that defendants must be deemed estopped from arguing that a warrant might have existed or, conversely, must be deemed to have admitted that no warrant existed. … For purposes of this litigation, there was no such warrant for the electronic surveillance of any of plaintiffs.
Walker also suggested that the Justice Department’s approach to the case, if sustained, would allow government officials to violate FISA with impunity.
Under defendants’ theory, executive branch officials may treat FISA as optional and freely employ the SSP to evade FISA, a statute enacted specifically to rein in and create a judicial check for executive-branch abuses of surveillance authority.
Walker, an appointee of President George H.W. Bush, has clashed repeatedly with the government in the case, especially over his unsuccessful efforts to obtain classified information clearances for the groups’ lawyers. Throughout the new decision, Walker was skeptical of the government’s legal tactics. At one point, he describes the Justice Department’s arguments as “an impressive display of argumentative acrobatics.” The comment was apparently sarcastic as he later called the government’s assertions illogical.
UPDATE: An appeal in the case seems all but certain. However, a Justice Department spokeswoman, Tracy Schmaler, says the decision is being reviewed and offers this statement on changes Attorney General Eric Holder has made to the state secrets policy:
The Attorney General has instituted key reforms to the Department’s state secrets policy to strike an appropriate balance between rebuilding the public’s trust in the government’s use of this privilege while recognizing the imperative need to protect national security. The Department’s new policy takes significant steps to reform the use of the privilege by ensuring that if it is invoked, it is narrowly tailored and done so following a review by a committee of senior Justice officials and approved by the attorney general.
This process is designed to provide greater accountability for the use of the privilege and to ensure that the Department invokes the privilege only to the extent that it is absolutely necessary to protect national security.
{Politico/Noam Amdurski-Matzav.com Newscenter}
This is a bad sign