A federal judge ruled Monday that a lawsuit filed by an Islamic charity alleging that it was illegally wiretapped by the National Security Agency may proceed, and issued a stinging rebuke to government lawyers who have repeatedly sought to invoke the state secrets privilege to block litigation.
The case, Al Haramain v. Bush, is unusual in that—unlike the Electronic Frontier Foundation's more publicized suits against the NSA and complicit telecoms—the plaintiffs in this case know that the directors of the Al-Haramain Islamic Foundation were specifically subject to warrantless surveillance, thanks to a government blunder that put a classified memo in the hands of the charity's lawyers. An appellate court ruled last year that the secret document had to be turned over to the government, and so could not be used to establish standing to sue. But in an opinion issued this summer, Judge Vaughn Walker, who has been handling a spate of suits concerning the NSA's super-secret "Stellar Wind" program, decided that the foundation could still seek to show they'd been spied upon using public evidence.
On Monday, Walker concluded that they had met that burden. "Without a doubt," he wrote, plaintiffs have alleged enough to plead 'aggrieved persons' status so as to proceed to the next step in proceedings." Blocked from using the secret memo, attorneys for Al Haramain assembled a timeline, drawing on FBI memoranda and Congressional testimony, suggesting that the government had been privy to conversations between foundation directors in which they discussed people with links to Osama bin Laden. The foundation's assets were frozen in 2004 when it was classified as a "Specially Designated Global Terrorist" group—a designation the government acknowledged to be partially based on classified documents derived from surveillance.
The Justice Department has repeatedly sought to block the suit by invoking national security concerns. Urging the court to reject the foundation's circumstantial evidence as insufficient, they argued that the court "cannot exercise jurisdiction based on anything less than the actual facts." But in language echoing previous rulings, Walker rejected that argument, noting that Congress had made specific provision within the Foreign Intelligence Surveillance Act for "aggrieved persons" to seek redress for improper surveillance.
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At times, a note of irritation crept into Walker's even, judicial language. At one point, he described the government's argument as "without merit," and characterized another as "circular." He also seemed impatient with the Justice Department's refusal to provide any classified documents addressing Al Haramain's specific claims for review in chambers. "It appears... that defendants believe they can prevent the court from taking any action under 1806(f) by simply declining to act," wrote Walker.