Court Wary of Overturning Warrantless Spy Case Victory, But Might Have To

Judge M. Margaret McKeown. Photo: 9th U.S. Circuit Court of Appeals

PASADENA, California — A federal appeals court appeared troubled Friday by the Obama administration’s arguments that the government could break domestic spying laws without fear of being sued — and that the government’s argument might be correct, due to an oversight by Congress.

A two-judge panel of the 9th U.S. Circuit Court of Appeals heard an hour of oral arguments here by the government and a lawyer for two attorneys whom a federal judge concluded had been wiretapped illegally without warrants by the government.

The 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. They sued under domestic spying laws adopted in the wake of President Richard M. Nixon’s Watergate scandal. The government appealed.

Justice Department attorney Douglas Letter told Judge Michael Daly Hawkins and M. Margaret McKeown, both President Bill Clinton appointees, that they should dismiss the case outright because the government is immune from being sued for breaching the Foreign Intelligence Surveillance Act under a concept known as sovereign immunity.

“We think the simplest way here is the sovereign immunity argument,” Letter told the panel. He added that the aggrieved lawyers could sue individual government officials. But under that scenario, the government would declare the issue a state secret and effectively foreclose litigation.

“I’m trying to understand the government’s overall position,” Hawkins said. “The government’s position is you can’t sue the government, you can sue anybody else, but who those people are might be a state secret.”

“Correct, your honor,” Letter said moments later.

A federal judge found in 2010 that two American lawyers’ telephone conversations with their clients in Saudi Arabia in 2004 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.

Judge Michael Daly Hawkins. Photo: 9th U.S. Circuit Court of Appeals

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 a trial judge concluded showed the government illegally wiretapped the lawyers as they spoke on U.S. soil to Saudi Arabia.

It marked the first and only time anyone had prevailed in a lawsuit challenging President George W. Bush’s so-called Terrorist Surveillance Program. The 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 line was overseas and associated with terrorism. The government had 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.

Judge McKeown suggested that, even if the appeals court gutted the case on sovereign immunity grounds, the case could go back to the trial court to target individual government officials allegedly involved, like FBI Director Robert Mueller, who was earlier dismissed from the case.

“Why wouldn’t the case go back to district court?” she asked Letter.

“You shouldn’t allow plaintiffs to play these types of games,” Letter responded, saying there was no direct evidence that the director was personally involved in the alleged spying.

“It’s not a game,” Hawkins said.

“This is just wrong to do this to a federal official,” Letter added.

Jon Eisenberg, the attorney for Belew and Ghafoor, took the podium next and said: “We do not view this litigation as a game, in the slightest.”

He added that “this lawsuit was about official government conduct, not rogue individuals.”

Judge Harry Pregerson, a President Jimmy Carter appointee, did not participate in the hour-long arguments but will review a transcript. The court decides cases with three-judge panels.

Judge Hawkins noted that the FISA 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.

Still, both judges seemed troubled that they might, indeed, have to dismiss the case on sovereign immunity grounds, because they suggested that the FISA law does not expressly waive sovereign immunity, or authorize the right to sue the government.

The two al-Haramain lawyers alleged they were the victim of the Bush administration’s secret, warrantless domestic spying program adopted in the aftermath of the September 2001 terror attacks.

Congress, with the vote of President Barack Obama — who was an Illinois senator at the time — subsequently legalized much of the warrantless spying in the summer of 2008. The legislation also provided the nation’s telecommunication companies immunity from lawsuits accusing them of being complicit with the government’s warrantless wiretapping. That legislation expires at year’s end, and Obama has asked Congress to reauthorize it.

The court did not indicate when it would rule.