al-haramain v. obama (N.D. Cal. Mar. 31, 2010)

March 31, 2010

* Al-Haramain Islamic Foundation v. Obama (N.D. Cal. Mar. 31, 2010)

Judge Walker today granted summary judgment to the plaintiffs in this much-discussed civil suit arising out of alleged NSA warrantless surveillance. As you may recall, Judge Walker previously had made two critical determinations. First, he determined that FISA’s provisions for civil suits by “aggrieved persons” had the effect of preempting application of the state secrets privilege, thus negating the government’s primary line of defense. Second, he determined that Al-Haramain was in a position, at least in theory, to invoke “aggrieved person” status under FISA. If I recall correctly, the government sought interlocutory review of these rulings, but did not get it.

And so the case proceeded to a determination of whether Al-Haramain actually could establish standing. Judge Walker today concluded that Al-Haramain had collected enough unclassified evidence indicating that it had been surveilled without a FISA warrant—including various public statements by government officials–so as to defeat the government’s objection. The question then became whether Al-Haramain’s FISA claim should prevail on the merits, and Judge Walker again sided with Al-Haramain.

The opinion does not address other claims in Al-Haramain’s complaint, such as Fourth Amendment arguments. Judge Walker asks Al-Haramain to decide soon whether it intends to pursue those claims, or if instead it will seek entry of judgment on the FISA issue.

al-haramain sj decision.pdf