[FoRK] Appeals Court OKs Warrantless Wiretapping

Eugen Leitl eugen at leitl.org
Wed Aug 8 03:28:47 PDT 2012


Appeals Court OKs Warrantless Wiretapping

    By David Kravets 08.07.12 3:16 PM

Judge M. Margaret McKeown

The federal government may spy on Americans’ communications without warrants
and without fear of being sued, a federal appeals court ruled Tuesday in a
decision reversing the first and only case that successfully challenged
President George W. Bush’s once-secret Terrorist Surveillance Program.

“This case effectively brings to an end the plaintiffs’ ongoing attempts to
hold the executive branch responsible for intercepting telephone
conversations without judicial authorization,” a three-judge panel of the 9th
U.S. Circuit Court of Appeals wrote. (.pdf)

The case concerned a lower court decision in which two American attorneys —
who were working with the now-defunct al-Haramain Islamic Foundation — were
awarded more than $20,000 each in damages and their lawyers $2.5 million in
legal fees after a tortured legal battle where they proved they were spied on
without warrants.

They sued under domestic spying laws Congress adopted in the wake of
President Richard M. Nixon’s Watergate scandal. The government appealed their
victory, and the appeals court Tuesday dismissed the suit and the damages.

Jon Eisenberg, the lawyer for the two attorneys, said he may request the
court to reconsider its decision with a larger panel of judges, or petition
the Supreme Court.

“This case was the only chance to litigate and hold anybody accountable for
the warrantless wiretapping program,” he said in a telephone interview. “As
illegal as it was, it evaded accountability.”

Jon Eisenberg. Photo: Ryan Singel/Wired

The San Francisco-based appeals court ruled that when Congress wrote the law
regulating eavesdropping on Americans and spies, it never waived sovereign
immunity in the section prohibiting targeting Americans without warrants.
That means Congress did not allow for aggrieved Americans to sue the
government, even if their constitutional rights were violated by the United
States breaching its own wiretapping laws.

“Under this scheme, 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,” Judge M.
Margaret McKeown wrote for the majority. She was joined by Judge Michael Daly
Hawkins and Judge Harry Pregerson. ”Although such a structure may seem
anomalous and even unfair, the policy judgment is one for Congress, not the

The court, during oral arguments in June, expressed concern that it may reach
this result.

Judge Hawkins, during those arguments, noted that the law spells out that
those who were illegally spied upon may seek monetary damages. But if
Congress did not intend for the government to be sued, “it would make the
remedy illusory,” Hawkins said.

The court did not comment on the spying allegations of those involved in the
case. It also dismissed claims against FBI Director Robert Mueller, saying
there was not enough evidence linking him to the spy program the Bush
administration adopted in the wake of the 2001 terror attacks.

Subsequently, Congress authorized Bush’s spy program in 2008, five years
after the illegal wiretapping involved in this case.

The Bush spy program was first disclosed by The New York Times in December
2005, and the government subsequently admitted that the National Security
Agency was eavesdropping on Americans’ telephone calls without warrants if
the government believed the person on the other end was overseas and
associated with terrorism. The government also secretly enlisted the help of
major U.S. telecoms, including AT&T, to spy on Americans’ phone and internet
communications without getting warrants as required by the 1978 Foreign
Intelligence Surveillance Act, the law at the center of the al-Haramain

A lower court judge found in 2010 that two American lawyers’ telephone
conversations with their clients in Saudi Arabia were siphoned to the
National Security Agency without warrants. The allegations were initially
based on a classified document the government accidentally mailed to the
former al-Haramain Islamic Foundation lawyers Wendell Belew and Asim Ghafoor.

The document was later declared a state secret, removed from the long-running
lawsuit and has never been made public. With that document ruled out as
evidence, the lawyers instead cited a bevy of circumstantial evidence that a
trial judge concluded showed the government illegally wiretapped the lawyers
as they spoke on U.S. soil to Saudi Arabia.

The other major case challenging the wiretapping program, the Electronic
Frontier Foundation’s case against the government, alleges a wholesale
vacuuming of Americans’ communications. That case was sent back to a district
court after it survived an appeals court ruling in December.  David Kravets

David Kravets is a senior staff writer for Wired.com and founder of the fake
news site TheYellowDailyNews.com. He's a dad of two boys and has been a
reporter since the manual typewriter days.

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