Apparently deciding that it’s not bad enough that the Al-Haramain Foundation, a now-defunct Muslim charity from Oregon, had its 4th amendment rights clearly violated by warrantless wiretaps, the 9th Circuit Court of Appeals has now decided that they aren’t even entitled to have the costs of their legal challenge to the government’s illegal actions reimbursed.
This is the appalling case where the federal government, under both the Bush and Obama administrations, invoked the State Secrets Privilege — as they have in every single case involving illegal surveillance — to make the government entirely immune to legal challenge for its actions that violate the 4th Amendment.Ordinarily in such cases, the government argues that the case has to be dismissed on standing grounds — the victims can’t prove they were the target of illegal surveillance unless the government admits to it, but of course they won’t admit to it, so you don’t get your day in court.
But in this case, they had actually turned over a document early on in the case that confirmed that the group had had their communications intercepted without a warrant, something forbidden not only by the 4th Amendment but also by the Foreign Intelligence Surveillance Act (FISA). So they then argued that, even though the document had been placed on the record in the case, it could not be used to establish standing — and in fact, that no one in the case could even testify as to their memory of what the document said.
Now the appeals court has upheld the government’s claim of “sovereign immunity” to such suits, despite the fact that the FISA law explicitly allows for such penalties. And the court engaged in some epic hair-splitting to do so:
Al-Haramain can bring a suit for damages against the United States for use of the collected information, but cannot bring suit against the government for collection of the information itself.
And indeed, the statute does specify use rather than collection:
An aggrieved person, other than a foreign power or an agent of a foreign power, as defined in section 1801(a) or (b)(1)(A) of this title, respectively, who has been subjected to an electronic surveillance or about whom information obtained by electronic surveillance of such person has been disclosed or used in violation of section 1809 of this title shall have a cause of action against any person who committed such violation and shall be entitled to recover–
(a) actual damages, but not less than liquidated damages of $1,000 or $100 per day for each day of violation, whichever is greater;
(b) punitive damages; and
(c) reasonable attorney’s fees and other investigation and litigation costs reasonably incurred.
But in this case, the government did use the information they collected to try and have the group designated as a terror-supporting organization (and failed in that attempt, I believe). Just another brick in the wall that protects the executive branch against the application of the Bill of Rights. The executive branch today is, for all practical purposes, outside the law. Full ruling here.