By Amanda Frost, associate professor of law, American University Washington College of Law
Plaintiffs have won a rare victory against the government in a case involving the state secrets privilege. On April 1, 2010, Federal District Judge Vaughn Walker ruled in favor of Al-Haramain Islamic Foundation, Inc., a now-defunct Islamic charity that had sued the government for intercepting its employees' international telephone conversations without obtaining a warrant. Al-Haramain claimed the government's warrantless wiretap violated the Foreign Intelligence Surveillance Act (FISA), a federal law that limits the government's ability to eavesdrop on its citizens. The case is one of several challenging the National Security Agency's warrantless wiretapping program. The government has responded to all such lawsuits by arguing because its surveillance activities concern national security, the state secrets privilege requires dismissal of claims that it violated FISA.
Yet FISA was enacted for the very purpose of preventing the government from eavesdropping without a warrant, and it provides a mechanism by which individuals or groups who believe they have been victims of an unlawful government wiretap can seek redress in the courts even when the claim relies on classified evidence. Under FISA, if a plaintiff establishes a "colorable basis" for believing that it has been subject to unlawful surveillance, the Court can then examine classified evidence in camera to determine whether the surveillance occurred, and if so whether it was lawful.
Al-Haramain met its burden by producing non-classified evidence that it had been the subject of such surveillance -including statements by government officials admitting as much. (In addition, the government had inadvertently produced a classified document acknowledging that Al-Haramain was wiretapped, though that document was excluded from the Court's consideration.) Unfortunately, the government refused to respond to the merits of plaintiffs' claims. Rather than dispute whether Al-Haramain had been subject to surveillance, or contend that the surveillance was lawful, the government continued to argue that the state secrets privilege barred introduction of any evidence relevant to those questions.
So it should come as no surprise that the government lost its case. Clearly frustrated by the government's "intransigence," Judge Walker concluded that he had no choice to rule in favor of the plaintiffs after the government failed to address Al-Haramain's claims that it had been the subject of unlawful surveillance.
This "victory" for the plaintiffs is unsatisfying for just about everyone. Because the government refused to respond to the merits of plaintiffs' claim, the case sheds no light on NSA's warrantless surveillance program. Just as disappointing, the government forfeited an opportunity to work with the court and the plaintiffs to create a model for future civil litigation involving classified information. Judge Walker ordered the government to process security clearances for plaintiffs' attorneys and to work with plaintiffs to create a protective order governing use of classified information-all reasonable steps that could have protected the classified information at issue while enabling the plaintiffs to seek judicial review of their FISA claim. Yet the government refused to participate in this process, preferring instead to argue that it alone controls access to information about whether it violated the law. Accordingly, the win is a hollow one for those who hope to see executive branch work with the courts rather than claim immunity from judicial oversight.
[Image via Jinx!.]