Sovereign Immunity Gets Damages Thrown Out in Wiretapping Case

Back in June, I wrote that the United States government had made the improbable argument in court that it couldn't be held accountable for its wiretapping misdeeds because it was protected by the doctrine of sovereign immunity from any consequences for its actions unless it said otherwise — and it didn't. What gall, I thought. What an unconvincing argument! Well … heh, heh … it turned out to be more convincing than I anticipated. In fact, the Ninth Circuit Court of Appeals just threw out a judgment in favor of the Al-Haramain Islamic Foundation based on the government's nifty legal stylings.

The Al-Haramain Islamic Foundation had been awarded $40,800 in damages and $2.5 million in legal fees because of illegal warrantless surveillance conducted by the National Security Agency. The group had discovered it was subject to super-secret scrutiny when government lawyers accidentally gave them documents detailing that fact. The feds took exception to the award, and raised, to my mind, some novel objections. In my earlier piece, I reported the following exchange between Justice Department attorney Douglas Letter and Judge Michael Daly Hawkins:

"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.

As Kafka-esque as that back-and-forth seemed, it turned out to be overwhelmingly persuasive to the court. The key was sovereign immunity. Wrote Judge M. Margaret McKeown in the latest decision (PDF):

Contrary to the district court's reliance on implied waiver, "[a] waiver of sovereign immunity cannot be implied but must be unequivocally expressed."

The U.S. government never explicitly waived sovereign immunity when it came to warrantless wiretaps implemented under the Foreign Intelligence Surveillance Act, 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. … Although such a structure may seem anomalous and even unfair, the policy judgment is one for Congress, not the courts.

McKeown also wrote that Al-Haramain could, potentially, have sued FBI Director Robert Mueller, but that it focused on its case against the government at the expense of pursuing grievances against Mueller, so the district court was right to dismiss him from the suit.

So … The government apparently gets off scot-free.