We Can't Tell You Whether We Broke the Law, Because That's a Secret

Yesterday a federal judge in San Francisco ruled that the Al Haramain Islamic Foundation can recover damages under the Foreign Intelligence Surveillance Act (FISA) for illegal eavesdropping on telephone conversations between its officials and its American lawyers. U.S. District Judge Vaughan Walker rejected the Obama administration's argument that the state secrets privilege barred the foundation's lawsuit. Although Barack Obama ran on a promise to use the privilege less promiscuously than his predecessor, his Justice Department, like Bush's, claimed that even acknowledging the warrantless wiretapping of Al Haramain would endanger national security.

Al Haramain learned about the surveillance after the government accidentally gave its lawyers a classified document discussing it, but the foundation was not allowed to cite that document in making its case. Instead it relied on public statements by various federal officials that Walker concluded were sufficient to show the surveillance had occurred. Since there was never any serious question that warrantless surveillance of communications involving people in the United States violated FISA, the government lost its case once Walker refused to let it hide behind the state secrets privilege. "Under defendants' theory," he noted, "executive branch officials may treat FISA as optional and freely employ the SSP to evade FISA, a statute enacted specifically to rein in and create a judicial check for executive-branch abuses of surveillance authority….Because FISA displaces the SSP in cases within its purview, the existence of a FISA warrant is a fact that cannot be concealed through the device of the SSP."

While running for president, Obama criticized the Bush administration for treating FISA as optional and promised to investigate terrorism without breaking the law. At the same time, he voted to amend FISA in ways that legalized most of the warrantless surveillance that Bush had unilaterally approved. But according to The New York Times (citing "current and former Justice Department officials"), "The surveillance of Al Haramain would still be unlawful today if no court had approved it," because the amended statute "still requires the government to obtain a warrant if it is focusing on an American citizen or an organization inside the United States."  

Walker's decision is here (PDF).