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033110 NSA Walker - Al-Haramain Islamic Foundation Decision

033110 NSA Walker - Al-Haramain Islamic Foundation Decision

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Published by D. Manchester
David Kravetz (wired) summary:
[Plaintiff] alleged some of their 2004 telephone conversations to Saudi Arabia 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. The document was later declared a state secret and removed from the long-running lawsuit weighing whether a sitting U.S. president may create a spying program to eavesdrop on Americans’ electronic communications without warrants

“Plaintiffs must, and have, put forward enough evidence to establish a prima facie case that they were subjected to warrantless electronic surveillance,” U.S. District Judge Vaughn Walker ruled, in a landmark decision. Even without the classified document, the judge said he believed the lawyers “were subjected to unlawful electronic surveillance” (.pdf) in violation of the Foreign Intelligence Surveillance Act, which requires warrants in terror investigations.

It’s the first ruling addressing how Bush’s once-secret spy program was carried out against American citizens. Other cases considered the program’s overall constitutionality, absent any evidence of specific eavesdropping. ... [Plaintiff's] lawyer, Jon Eisenberg, said in a telephone interview that “the case is not about recovering money. What this tells the president, or the next president, is, you don’t have the power to disregard an act of Congress in the name of national security." ... It’s uncertain whether Wednesday’s decision will withstand appeal
David Kravetz (wired) summary:
[Plaintiff] alleged some of their 2004 telephone conversations to Saudi Arabia 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. The document was later declared a state secret and removed from the long-running lawsuit weighing whether a sitting U.S. president may create a spying program to eavesdrop on Americans’ electronic communications without warrants

“Plaintiffs must, and have, put forward enough evidence to establish a prima facie case that they were subjected to warrantless electronic surveillance,” U.S. District Judge Vaughn Walker ruled, in a landmark decision. Even without the classified document, the judge said he believed the lawyers “were subjected to unlawful electronic surveillance” (.pdf) in violation of the Foreign Intelligence Surveillance Act, which requires warrants in terror investigations.

It’s the first ruling addressing how Bush’s once-secret spy program was carried out against American citizens. Other cases considered the program’s overall constitutionality, absent any evidence of specific eavesdropping. ... [Plaintiff's] lawyer, Jon Eisenberg, said in a telephone interview that “the case is not about recovering money. What this tells the president, or the next president, is, you don’t have the power to disregard an act of Congress in the name of national security." ... It’s uncertain whether Wednesday’s decision will withstand appeal

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Published by: D. Manchester on Apr 01, 2010
Copyright:Attribution Non-commercial

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05/24/2012

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IN THE UNITED STATES DISTRICT COURTFOR THE NORTHERN DISTRICT OF CALIFORNIA IN RE: NATIONAL SECURITY AGENCYTELECOMMUNICATIONS RECORDSLITIGATION This order pertains to: AL-HARAMAIN ISLAMICFOUNDATION, INC, an Oregon Nonprofit Corporation; WENDELLBELEW, a United States Citizenand Attorney at Law; ASIM GHAFOOR, a Unites States Citizenand Attorney at Law,Plaintiffs,vBARACK H OBAMA, President of theUnited States; NATIONAL SECURITY AGENCY and KEITH B ALEXANDER,its Director; OFFICE OF FOREIGN ASSETS CONTROL, an office of theUnited States Treasury, and ADAM J SZUBIN, its Director; FEDERALBUREAU OF INVESTIGATION andROBERT S MUELLER III, itsDirector, in his official and personal capacities,Defendants./MDL Docket No 06-1791 VRWCase No C 07-0109 VRW MEMORANDUM OF DECISION AND ORDER 
Case3:07-cv-00109-VRW Document115 Filed03/31/10 Page1 of 45
 
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2SUMMARY OF DECISIONPlaintiffs seek an order finding defendants civillyliable to them under section 1810 of the Foreign IntelligenceSurveillance Act (“FISA”), 50 USC §§ 1801-71, for eavesdropping ontheir telephone conversations without a FISA warrant. In thecourse of lengthy proceedings in this court and the court ofappeals, described more fully in the decision that follows, thiscourt determined that: FISA affords civil remedies to “aggrieved persons” who can show they were subjected to warrantless domesticnational security surveillance; FISA takes precedence over thestate secrets privilege in this case; a prima facie case ofunlawful electronic surveillance under FISA requires plaintiffs to present to the court specific facts based on non-classifiedevidence showing that they are “aggrieved persons”; and plaintiffshave met their burden of establishing their “aggrieved person”status using non-classified evidence. Because defendants denied plaintiffs’ counsel access to any classified filings in thelitigation, even after top secret clearances were obtained for plaintiffs’ counsel and protective orders suitable for top secretdocuments proposed, the court directed the parties to conduct this phase of the litigation without classified evidence. Both plaintiffs’ motion for summary judgment of liability anddefendants’ cross-motions for dismissal and for summary judgmentwere, therefore, based entirely on non-classified evidence.The court now determines that plaintiffs have submitted,consistent with FRCP 56(d), sufficient non-classified evidence toestablish standing on their FISA claim and to establish the absenceof any genuine issue of material fact regarding their allegation of
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3unlawful electronic surveillance; plaintiffs are therefore entitledto summary judgment in their favor on those matters. Defendants’various legal arguments for dismissal and in opposition to plaintiffs’ summary judgment motion lack merit: defendants havefailed to meet their burden to come forward, in response to plaintiffs’ prima facie case of electronic surveillance, withevidence that a FISA warrant was obtained, that plaintiffs were notsurveilled or that the surveillance was otherwise lawful.In the absence of a genuine issue of material factwhether plaintiffs were subjected to unlawful electronicsurveillance within the purview of FISA and for the reasons fullyset forth in the decision that follows, plaintiffs’ motion forsummary judgment on the issue of defendants’ liability under FISA is GRANTED. Defendants’ motion to dismiss the amended complaintfor lack of jurisdiction is DENIED and defendants’ cross-motion forsummary judgment is DENIED. Because the court has determined thatthe sole defendant sued in both official and individual capacitiesacted wholly in his official capacity and not as an individual, theindividual-capacity claims are DISMISSED.\\\\\\\\\\\\\\\\\\
Case3:07-cv-00109-VRW Document115 Filed03/31/10 Page3 of 45

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