Yesterday, a federal judge in the Northern Distinct of California ruled the program of domestic warrantless wiretapping illegal, as it violates the Foreign Intelligence Surveillance Act (FISA). FISA requires the government to get court approval prior to conducting electronic surveillance or wiretapping on any private communication between the United States and another nation. The program of warrantless domestic wiretapping was initiated in secret by the Bush Administration in the wake of the September 11th attacks and continued by the Obama Administration. The National Security Agency (NSA) was tasked with implementing the measures. In 2008, FISA was revised to bring its language more into line with what the Bush administration had been doing in secret. However, warrantless surveillance of American citizens and groups within the United States still remains illegal under the revised version of FISA.
The suit was brought by a now-defunct Islamic charity, Al Haramain, and its lawyers, who claimed to have been targeted by the warrantless wiretapping program. While previous challenges to the warrantless wiretapping program have been made, each failed because plaintiffs could not prove that they had been directly targeted by the program, and thus lacked standing to sue. In the Al Haramain case, the government inadvertently disclosed that the charity and its lawyers had been targeted by the program. This gave them standing in court to challenge the action. The plaintiffs moved for summary judgment, and the judge granted the motion. In his opinion, the judge noted that the surveillance performed on Al Haramain required prior court authorization, and the government could provide no evidence that it obtained such authorization. The government countered that the case should not be permitted to go forward because doing so could reveal state secrets. The so-called state secrets privilege has been used extensively in litigation involving measures implemented by the government following the September 11th attacks. The judge stated that the state secrets privilege amounted to “unfettered executive branch discretion,” and also pointed out that its use has the potential for serious abuse.
The court awarded the plaintiffs $20,200 in damages, or $100 for every day of illegal surveillance performed. There is also the possibility that a large amount of punitive damages will be awarded against the government, though that had not been decided as yet. The Department of Justice has not decided whether it will appeal the ruling.