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.


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  1. Sovereign Immunity is a pretty terrible idea.

    1. Please, your betters don’t need laws for them to know what’s right and wrong.

    2. Didn’t we have a post a while back in which a Court (Ohio, I beleive), ruled that the proper response to your rights being violated was to file a suit/

      IIRC, the case involved a resident who forcefully attempted to prevent an unlawful entry into his home by the police. The Court ruled that the resident didn’t have the right to resist at the time of entry.

      So much for that.

      1. Exactly.

        When police violate your rights you must submit, and you may sue them later if you can afford a lawyer.

        Only people who can afford a lawyer have rights.

        1. So how soon will Sovereign Immunity be extended to cover other Rights violations, leaving us with no recourse at all?

          Fuck you, that’s why.

          1. It effectively is that way since your ability to sue doesn’t mean you will win, and even if you win the guy who violated your rights will keep his job and continue to abuse people.

    3. If there are no consequences to breaking a law, there is no law.

      1. what a surprise that people have no respect for the law. You can’t respect something that doesn’t exist.

    4. Sovereign Immunity is a pretty terrible idea.

      The king is above the law.

  2. So basically, the law is just for serfs?

    1. By jove, I think you’ve got it!

    2. DENNIS: You’re fooling yourself. We’re living in a dictatorship.
      A self-perpetuating autocracy in which the working classes–
      WOMAN: Oh there you go, bringing class into it again.
      DENNIS: That’s what it’s all about if only people would–
      ARTHUR: Please, please good people. I am in haste. Who lives
      in that castle?
      WOMAN: No one live there.
      ARTHUR: Then who is your lord?
      WOMAN: We don’t have a lord.
      ARTHUR: What?
      DENNIS: I told you. We’re an anarcho-syndicalist commune. We take
      it in turns to act as a sort of executive officer for the week.
      ARTHUR: Yes.
      DENNIS: But all the decision of that officer have to be ratified
      at a special biweekly meeting.
      ARTHUR: Yes, I see.
      DENNIS: By a simple majority in the case of purely internal affairs,–
      ARTHUR: Be quiet!
      DENNIS: –but by a two-thirds majority in the case of more–

  3. We’re not far away from an open admission of “Fuck you, that’s why.” from the government.

    1. Not far?

      “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.

      We have arrived.

  4. Isn’t a case like this what Bivens liability is all about? So that the Government doesn’t get to avoid liability for constitutional violations by failing to create a cause of action?

    1. those words all make sense on their own, but put together like that….huh?

  5. So what’s the downside for warrantless wiretapping? If you do and get nothing, then nothing happens. If you do it and get something, use it to go get a warrant, and then raid.

    The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

    One little word, so many problems. They never imagined how some would torture the notion of “reasonable” until it pissed its pants, screamed for its mother and then turned inside out.

    1. They never imagined….

      The Founders sure were an unimaginative bunch.

  6. reminds me of the Solzhenitsyn book, “We Never Make Mistakes”

    Also, this:

    The Al-Haramain Islamic Foundation had been awarded $40,800 in damages and $2.5 million in legal fees…

    …makes you realize how insane the system is, because it ‘costs’ $2.5million to simply extract any redress of grievences, and even then, the bastards will just declare themselves above the law anyway. Why bother playing? They could have just said when the suit was filed, “Don’t waste your money: laws don’t apply to us”

    1. Sticking them with attorney fees is how the government discourages people from sticking up for themselves in the future.

      1. And the lawyer parasites make out on either side. Of course!

        1. Well, in this case, the lawyer parasites who brought the case didn’t really make out, did they?

          1. That’s a rare loss, lawyer parasite!

            1. “lawyer parasite”

              You’re being a bit redundant, don’t you think?

              Do you put your PIN number into the ATM machine?

              1. Do you put your PIN number into the ATM machine?

                I prefer to use my personal PIN number, and only at fully automated ATM machines.

  7. I think I’m going to be sick after reading this.

    Jesus Christ, do you people realize these guys aren’t even unionized yet? Imagine how bad it will get when they are.

    1. The incentive, really, is neither to win or lose, but simply drag shit out forever to pump up the fees…

      There are people in this world who read Kafka, and confused it for Instruction Manuals.

  8. Main, that’s a hell of catch, that catch-22. Way to go, .gov!

    Thsi reminds me of collecting damages from teh state of Texas. You can win a judgement all day long, but unless the lege specifically authorizes payment, you’ll never see a dime.

    1. Because . . . ?

  9. Who watches the Watchmen?

    1. Rorschach?

    2. The IRS.

    3. The IRS.

    4. I think the custodian. You know, the old dude named Quis.

  10. Haha, suckers!

  11. If there are no consequences to breaking a law, there is no law.

    Laws are for little people.

  12. I’m gonna bury myself under a rock for the next 5-10 years. Somebody dig me out when all the shooting subsides.

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