Ninth Circuit denies government appeal in Islamic charity surveillance case

A three-judge panel for the US Court of Appeals for the Ninth Circuit in San Francisco Feb. 27 denied an appeal by the Department of Justice seeking to stop a lawsuit brought by an Islamic charity alleging it was the subject of an illegal wiretap by the National Security Agency (NSA). The denial upholds last month’s ruling by US District Judge Vaughn Walker allowing the case brought by the al-Haramain Islamic Foundation to go forward.

At the heart of the appeal was the Obama administration’s fight to keep secret a classified document, a call log which allegedly shows the foundation had been wiretapped. The call log had been deemed a state secret, but Vaughn’s decision had ordered the government to allow the foundation to view the document. The Justice Departmnet had argued that allowing the lawsuit to proceed would jeopardize national security. While the denial of the appeal appears to grant al-Haramain’s lawyers access, the DoJ argued in a filing just hours after the appeals court ruling that the original order has no authority.

The document was accidentally released to al-Haramain in 2004 during the DoJ’s investigation which ultimately lead to the foundation being classified as a terrorist organization. The original lawsuit, filed by the foundation in February 2006, alleged that the NSA illegally taped several conversations between the charity and its lawyers. Walker had previously dismissed the suit, finding that al-Haramain lacked a cause of action because the state secrets privilege trumped procedural requirements under the Foreign Intelligence Surveillance Act (FISA). (Jurist, Feb. 28)

See our last post on surveillance state.

  1. Obama administration uses Bush-era argument on surveillance
    From The Register, April 6:

    The US Justice Department under President Obama is invoking Bush Administration tactics to dismiss a lawsuit alleging federal agents engaged in illegal phone and email surveillance of ordinary US citizens.

    A motion submitted to US District Judge Walker on Friday [April 3] claims disclosing information on the National Security Agency’s warrentless wiretapping program would “cause exceptionally grave harm to national security.”

    The 36-page brief invokes”state secrets” privileges to keep mum on the case, and claims the 2001 Patriot Act grants government agencies an umbrella “sovereign immunity” for domestic spy programs.

    In September 2008, the Electronic Frontier Foundation backed a handful of AT&T customers suing President Bush, the NSA, and nine other public officials to stop what the group characterizes as an “illegal and unconstitutional dragnet communications surveillance in concert with major telecommunication companies.” The lawsuit was nearly a duplicate to one the EFF filed earlier against AT&T’s practice of funneling internet traffic into a secret room in its San Francisco central office for government spooks to pour over. That first lawsuit was stalled when Congress granted retroactive immunity to telecoms for whatever spying activities they may have been involved with – so the group decided to go after holding government officials accountable for allegedly playing loose and easy with US Constitution and various statutory provisions.