Breaking: Judge Walker Grants Summary Judgment Finding Gov’t Liable Under FISA

Short version: al-Haramain wins!

Judge Walker just issued the following ruling in the al-Haramain case:

The court now determines that plaintiffs have submitted, consistent with FRCP 56(d), sufficient non-classified evidence to establish standing on their FISA claim and to establish the absence of any genuine issue of material fact regarding their allegation of unlawful electronic surveillance; plaintiffs are therefore entitled to 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 have failed to meet their burden to come forward, in response to plaintiffs’ prima facie case of electronic surveillance, with evidence that a FISA warrant was obtained, that plaintiffs were not surveilled or that the surveillance was otherwise lawful.

In the absence of a genuine issue of material fact whether plaintiffs were subjected to unlawful electronic surveillance within the purview of FISA and for the reasons fully set forth in the decision that follows, plaintiffs’ motion for summary judgment on the issue of defendants’ liability under FISA is GRANTED.

Walker is basically saying, “Well, government, if you won’t give us any evidence to prove you legally wiretapped al-Haramain, and given all the evidence they’ve presented proving they were wiretapped, then they win!”

Here’s his argument. The government had a way to defend against al-Haramain’s case directly, in camera, but they refused to avail themselves of it.

In FISA proceedings, 50 USC § 1806(f) provides a procedure by which the government may do this in camera, thus avoiding the disclosure of sensitive national security information. See In Re NSA Telecom Litigation, 564 F Supp 2d at 1131-35. Defendants declined to avail themselves of section 1806(f)’s in camera review procedures and have otherwise declined to submit anything to the court squarely addressing plaintiffs’ prima facie case of electronic surveillance.

Walker goes onto explain that, particularly given the government’s refusal to use the means by which Congress dictated that such review should be done, the government has a burden to prove it had a warrant to wiretap al-Haramain–a burden it has not met.

Plaintiffs have made out a prima facie case and defendants have foregone multiple opportunities to show that a warrant existed, including specifically rejecting the method created by Congress for this very purpose. Defendants’ possession of the exclusive knowledge whether or not a FISA warrant was obtained, moreover, creates such grave equitable concerns that defendants must be deemed estopped from arguing that a warrant might have existed or, conversely, must be deemed to have admitted that no warrant existed. The court now determines, in light of all the aforementioned points and the procedural history of this case, that there is no genuine issue of material fact whether a warrant was obtained for the electronic surveillance of plaintiffs. For purposes of this litigation, there was no such warrant for the electronic surveillance of any of plaintiffs.

Now, the government did present three reasons why it should not have to present evidence to defend itself. But much of that argument amounts to stating “we disagree with Judge Walker’s decision that FISA trumps State Secrets.” Not surprisingly, then, Walker gets a little snippy when explaining why the government’s arguments about why they shouldn’t have to prove they didn’t wiretap al-Haramain illegally fail.

Under defendants’ theory, executive branch officials may treat FISA as optional and freely employ the SSP to evade FISA, a statute enacted specifically to rein in and create a judicial check for executive-branch abuses of surveillance authority.


In an impressive display of argumentative acrobatics, defendants contend, in essence, that the court’s orders of June 3 and June 5, 2009 setting the rules for these cross-motions make FISA inapplicable and that “the Ninth Circuit’s rulings on the privilege assertion therefore control the summary judgment motions now before the Court.” Doc #672/105 at 6. In other words, defendants contend, this is not a FISA case and defendants are therefore free to hide behind the SSP all facts that could help plaintiffs’ case. In so contending, defendants take a flying leap and miss by a wide margin.

And that’s without even looking at Bush’s claim that Congress can’t tell the President he can’t wiretap Americans.

As I said: the government refused to engage on the merits, al-Haramain made a sufficient prima facie case, so the government has basically conceded the case.

[Note, this post has been updated several times.]

67 replies
  1. Petrocelli says:

    Thanks Marcy !

    The last few weeks of posts here, have been incredible. Thanks for all that you do to educate us, and to the most brilliant group of commenters on teh toobz.

  2. tekel says:

    you’re 100% right EW. This is a summary judgment for plaintiffs on all major claims, which means the trial is over. (of course, that just means that defendants finally can start their appeals– hello Jay Bybee!) see, at 44:

    “Having prevailed on their motion for summary judgment o
    liability on their FISA claim, plaintiffs now face a decision
    regarding the course of the remaining proceedings in this case.
    They may either: (1) take steps to prosecute the remaining claim
    in the FAC or (2) they may voluntarily dismiss those claims in
    order to take the steps necessary for the entry of judgment on the
    FISA claim. Plaintiffs shall advise the court, no later than Apr
    16, 2010 and in the manner set forth below, of their election.”

    Walker is saying: you win, now you just have to decide how much the govmint owes you in damages, and what other equitable remedies you would like.”

    iirc, FISA provides for a fine of one thousand dollars per person, per day for each day of unlawful wiretaps.

    As for equitable remedies, how about (a) an order to the federal marshals to seize equipment used in implementing the wiretaps, (b) an order shutting the whole damn thing down, right now, at CIA and NSA and FBI and Dick Cheney’s undisclosed location and Karl Rove’s Mom’s basement and wherever else it’s still running; (b) criminal penalties for failure to comply with the order; and (c) immediate disclosure of all documents related to the program while it was in progress?

    • bmaz says:

      Probably, but not necessarily. With standing, a remaining claims capable of litigation, there is the opportunity for further discovery. so, I am not positive it is as wrapped up as you infer.

      • Petrocelli says:

        We’re two races into the F1 season and the Final Four is this weekend … can a Brother get a Trash Talk thread ?

        Freep & I promise to share the HatPin*g*

        • bmaz says:

          Honestly meant to last weekend but got thrown off by the weird timing of it being the Australian GP; damn near missed the race.

      • tekel says:

        I’m too lazy to look for ew’s prior posts making this argument, but- it has been suggested before in these pages that the entirety of the gov’t strategy has been (a) admit no wrongdoing [because any such admission might be applied via res judicata in other litigation], (b) stall [to run statute of limitations, both for additional claims here and for other possible plaintiffs] and (c) keep any discovery as narrow as possible [to avoid disclosing identities of other illegal wiretap victims, so that those victims can’t establish standing or bring suit].

        So, I have to think Cynthia @15, ew @18, and you @19 are on the right track. At this point, the easiest way out of this for the gov’t is to say, effectively, “Let us write you a modest seven- or eight-figure check and then everyone can forget about this.”

        Presto, the Al-Haramain claims are resolved without any additional disclosure. Nobody else gets ammunition to use against DOJ, NSA, FBI, or CIA. The national media conversation about whether or not it is treason to use US military apparatus to spy on US persons without a warrant simply … never happens. And it’s now April 2010, so the SoL on new FISA claims has mostly (if not completely) run. Without an appeal, there is no precedent and no other litigants can rely on this case. No real facts about the government’s conduct have been established, except with respect to this particular defendant- so other courts can continue dismissing any charges that do come for lack of standing.

        Time for the DOJ to declare victory and go home.

        • bmaz says:

          Maybe, but the government could have done the same exact thing at any point since the statute ran on the last known al-Haramain intercept plead in the action, which I believe was June 10, 2009 (five years after the date of the last intercept) by withdrawing their pleadings, which would create an instant default situation. They did not do that and have had every opportunity to do so..

          • elgallorojo says:

            bmaz, I have a layman’s question for you. Re [email protected], I have imagined that there is a “school” of lawyering which studies all the miscarriages of justice in history, not in order to prevent them in the future, but to identify the particulars in order to reproduce them so as to benefit themselves. Call it “The Elite Legal Playbook”. Are there such private groups which compile such techniques and scenarios, or is this kind of thing taught in law schools? It would be a handy reference. Thanks.

          • tekel says:

            True. But there was always the chance that Walker would rule for the government… or that he would die before the trial ended, forcing reassignment to a more sympathetic judge. Voluntary default would effectively be the same as an admission of guilt. They needed to stall as much as possible while still pretending to believe that their arguments were correct.

      • tekel says:

        My understanding is that Al-Haramain brought a claim under FISA 50 USC §§ 1801-71, and separate claims of

        “violations of the separation of powers principle, the First, Fourth
        and Sixth Amendments of the United States Constitution and the
        International Covenant on Civil and Political Rights.”

        opinion at 4,5.

        This SJ was only as to standing and the FISA claim.

        My interpretation is that the court is asking: “OK, you won on this one issue, is that good enough, or do you want to carry on litigation under these other causes of action?”

  3. Cynthia Kouril says:

    This is only the beginning. There will be appeals upon appeals.

    I assume Walker was well awareof this, I hope he wrote s ufficiently defensive opinion.

      • emptywheel says:

        I actually think Walker is inviting them not to.

        If htey don’t appeal, they’ll just have to pay off al-Haramain, the same way they paid off Horn and Hatfill.

        Then this chapter of illegal conduct will be closed.

        One thing he did was to dismiss al-H’s request for an alternate ruling, based on what he saw when he reviewed the document. Which means if DOJ just accepts this ruling, they’ll be able to keep all that stuff secret.

        And given the huge expansion of similar wiretapping and congressional sanction, 1806 and 1810 have become largely meaningless. So by accepting this judgment, they would basically concede that they lost on the one and only test drive of 1806 they’ll ever see.

          • rmadelson says:

            Even if the outcome EW theorizes at 18 comes to fruition, at least we’ve got a district court opinion on these issues. Of course, as she also points out, we may never see another challenge like this. The facts that led to standing are pretty unlikely to repeat themselves. But who knows — at least we’ve got something.

  4. onitgoes says:

    Wonderful news, and I will enjoy it while it lasts. My concern is that it will be done away with at the higher levels. But in the meantime: hooray for some sanity and the rule of law.

    Thanks for the post.

  5. burnt says:

    Judge Walker’s order is a rather entertaining read for this non-lawyer.

    Ouch. That must smart. From page 34:

    Defendants’ nit-picking of each item of plaintiffs’
    evidence, their remarkable insinuation (unsupported by any evidence
    of their own) that the al-Buthi/al-Timimi intercepts might have
    been pursuant to a FISA warrant and their insistence that they need
    proffer nothing in response to plaintiffs’ prima facie case do not
    amount to an effective opposition to plaintiffs’ motion for summary

  6. JTMinIA says:

    Someone from the Administration needs to sit down and explain to Walker that this kind of crap is only supposed to be released on a Friday … preferably one right before a weekend with the Final Four and an F1 race.

    What a marooon.


    • emptywheel says:

      Now that he’s been outed as part of the Perry trial, he’s probably excused from doing Friday night document dumps just to ruin our fun watching Final Four and F1.

    • 4jkb4ia says:

      It was on Pesach! You could not ask for better!

      This is a perfect reminder of why I come here. I SAW THE HEADLINE ON NYTIMES.COM and was entirely satisfied that something had happened in the world, ran out towards my husband, and whooped. Husband: “Can they appeal?”

  7. WilliamOckham says:

    Great news. Still lots to play out in this one, but definitely a win for the rule of law and a loss for the seemingly inevitable encroachment of government spying. Off to the read the opinion, which appears from the excerpts above to be entertaining…

  8. Badwater says:

    This judge just doesn’t understand that when Decider Bush interrupted his bike ridin’ to do some decidin’, all decidins were automatically final, holy, and correct.

  9. Hugh says:

    The government and by this I mean the Obama Administration did not make an argument and lose on the merits. It didn’t even try to defend a weak case. It’s case was that that it did not have to make a case, that it only had to invoke state secrets like some kind of mantra or spell and all judicial action would stop. It goes to show that the Obama Administration is just as extreme in its views of the unilateral Executive as Bush was.

    It is worse in that, as Glenn Greenwald has noted, it is not only continuing Bush’s theory of Presidential dictatorship (my term) it is legitimizing it by putting a bipartisan stamp of approval on it.

    • bmaz says:

      Yes, and the Obama soldiers, even though some of them are the same, are more competent in how they go about doing the same shit.

  10. Hugh says:

    I suppose the other thing that needs to be mentioned is that, as all the evidence on which the summary judgment was based was unclassified, it seems to me that it will be impossible for the government to make a states secret argument as part of its appeal.

      • Hugh says:

        But state secrets wasn’t material to the judgment. The government can seek to re-argue it but will higher courts buy into a tacit denial of judicial review, a ceding of turf? It is about the only thing that a Roberts court would not allow.

        • bmaz says:

          State secrets is absolutely material to the judgment; if state secrets had been held primary over FISA, there would be no judgment. The denial of the government’s motion to dismiss based on state secrets would merge into the judgment for damages and they would appeal from that.

  11. DWBartoo says:

    Good news, kind of …

    A “victory”, kind of …

    But, Walker has said, in essence, “Okay boys, the fun’s over, just pay the little price of the suit, with the taxpayer’s money. All is forgiven and you don’t wanna make a stink because, basically, you get to walk away with all your crummy, dirty, little secrets intact, your pathetic behavior merely remarked upon, and the public largely ignorant of what has gone down and what it means, regarding the ‘rule of law’ (wink!, wink!).”

    Walker cannot be impressed, by any reasonable or legal means, by what the government has done (and done in the name of the people, incidentally,) with al-Haramain, but he, apparently, regards it all as a kind of game, an intellectual exercise of sorts and, even if the “players” the government sends over to play with him, aren’t of the highest caliber, it is all good, clean, if a trifle exuberant, fun, this matching of wits and wit, and playing with time … and consequences, of many kinds and sorts, are of little or no concern … no patterns emerge to pique the wonderment.

    Judge Walker has done a fine job with such clay as he has been permitted to mold and shape, one imagines, but that curious lack of deeper curiosity so typical of the Congress, these recent years, seems to have found pleasant welcome among many who comprise the “courts”, these days, as well.


  12. earlofhuntingdon says:

    Walker, at least, doesn’t believe in the, “Because I said so” defense. Would that the 9th and the Supremes also agreed.

    Beyond the so far temporary benefit to the plaintiffs, and as a shot across the bow of an anti-constitutional executive, this decision should help focus attention on how important will be Obama’s next Supreme Court nomination, which could come in a few months. Cass Sunstein and Elena Kagan would probably vote to strike this decision down in a heartbeat.

  13. WilliamOckham says:

    This is the best part. In the list of significant factors in favor of the plaintiffs:

    the testimony by members of the Bush administration before Congress that told us how they intercept communications, which is they do it on a wire from routing stations within the United States, which makes it electronic surveillance within the meaning of FISA

    26, 2006 testimony by defendant Alexander and CIA
    Director Michael Hayden (Eisenberg Decl Exh V, Doc #657-
    4/099-4 at 12(see also id Exh W at 19-20); Defs’ 3rd MTD
    Exh 15, Doc #475-3/049-3 at 23); May 1, 2007 testimony
    by Director of National Intelligence Michael McConnell
    (Eisenberg Decl Exh W, Doc #657-4/099-4 at 16-18); and
    September 20, 2007 testimony by McConnell before the
    House Select Intelligence Committee: “[t]oday * * *
    [m]ost international communications are on a wire, fiber
    optical cable,” and “on a wire, in the United States,
    equals a warrant requirement [under FISA] even if it was
    against a foreign person located overseas.”

    The two slimy Mikes (McConnell and Hayden) testimony before Congress arguing for the virtues of warrantless wiretapping was used to win this case for al-Haramain. That is justice both real and poetic. I love it.

  14. rmadelson says:

    Finally, some hope and change. This is great news and thank you so much for keeping track of this case so closely.

    Given the current occupants of the executive and legislative branches it’s tremendously satisfying to see the judiciary, even if it’s only a single district court (but a very important judge who, as you and the commenters here have explained over and over again, has put this case in great position for the appellate process), attempt to preserve the rule of law.

    We know ObamaCo. and the Congress will do nothing and worse to protect civil liberties but this case shows we still have hope in the courts.

    I’m very anxious about the Jeppesen case and hope that turns out as well.

  15. scribe says:

    Looking at the opinion, the ball is now in the plaintiffs’ court – they have tochoose whether to continue to litigate the remaining parts of the complaint (the SJ only addresses part of the complaint) or to dismiss those other counts and proceed to reducing their claim to a dollar amount (and the ancilary equitable type remedies) so they can get a final judgment.

    The defendants don’t really have an appeal at this point because it’s quite clearly interlocutory. Unless, of course, there’s an interlocutory appeal available – which I doubt.

    If I’m the plaintiffs, I decline to dismiss the remaining counts and move to discovery and litigating the remaining claims, so as to keep the government away from getting to the 9th Circuit (or just paying them off and burying this case).

    Because the smart thing for the government to do in moving forward is to not appeal and pay. By not appealing, they do not make any precedent which can be applied to other cases. The decision in this case would then be limited to the specific facts and would not be precedent for other plaintiffs.

    • bmaz says:

      Well, walker’s opinions would still be there in the F. Supp I suppose; but measley little old district opinions from the crazy NDCA in the really crazy 9th are not that much of a problem when there are effectively no other plaintiffs.

    • tekel says:

      Because the smart thing for the government to do in moving forward is to not appeal and pay.

      That seems to be the emerging consensus, at least here in EW’s little corner of the FDL blogoverse. But then the question becomes: what does Al-Haramain stand to gain by pursuing the constitutional claims?

      Correct me if I’m wrong, but as far as I know there are no automatic damages that attach to 1st or 4th amendment claims…? Even if Walker finds a 4th Amendment violation on the facts (likely, given what we already know), isn’t that claim subsumed or pre-empted by the FISA claim where the court has already ruled in Al-Haramain’s favor?

      Put another way: I sorta thought the Constitutional claims were there as alternative routes to the same judgment (in case the FISA claim got dismissed) rather than independent paths to a different result, since all the claims arose from the same illegal conduct. So, if FISA claim = $100, 1st amendment claim = $100, 4th amendment claim = $100, then FISA + 1st amendment + 4th amendment is still only $100, instead of $300 (or $5000).

      Can someone explain why I’m wrong?

      edit: of course, Al-H might gain additional discovery. But since the Gov’t essentially failed to provide any discovery so far on the FISA claim, why would it be any different on a 4th Amendment theory?

      • JeffinCA says:

        Can someone explain why I’m wrong?

        edit: of course, Al-H might gain additional discovery. But since the Gov’t essentially failed to provide any discovery so far on the FISA claim, why would it be any different on a 4th Amendment theory?

        Does anyone have an answer for tekel @55?

  16. oldoilfieldhand says:

    Thank you Marcy! Thank you Judge Walker! Any one looking for real American heros, look no further!

  17. carolbeth says:

    I love Judge Walker. Clear, constitutional standards and criteriae as stated by honest judiciousness.

    The Constitution does NOT suffer from insufficient specificity. Problems arise when one tries to go around the document’s premises.

  18. carolbeth says:

    In other words, defendants contend, this is not a FISA case and defendants are therefore free to hide behind the SSP all facts that could help plaintiffs’ case. In so contending, defendants take a flying leap and miss by a wide margin.

    I’m reading a glimmer of what it means to be an American.

  19. dougkahn says:

    Your relentless pursuit of this stuff is great. I know that I have to pay attention to these issues if I want to be a responsible American, and I really rely on you and a lot of your commenters.

    • bobschacht says:

      Olbermann interviewed James Risen of the NYT on the Al Haramain decision, and Risen drew rather broad conclusions about the implications for many other Bush GWOT programs. I would like to hear what others here think of his comments.

      Bob in AZ

  20. bobschacht says:

    Media alert: On a PBS station near you, tonite!
    Tavis Smiley Reports
    MLK: A Call to Conscience

    From the advance word, this should really be good.

    Bob in AZ

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