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Bush-authored warrantless wiretapping suffers abrupt defeat

No secret, no case

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The last of the US warrantless wiretapping cases has come to a rather surprising and abrupt finish.

Judge Vaughn Walker hearing the case formerly known as Al-Haramain vs Bush has ruled for the plaintiffs and against the US government on a motion for summary judgment, essentially telling the government it had no case.

This rare victory for civil libertarians followed years of obfuscation and wrangling on the part of both the Bush and the supposedly “open” Obama administration regarding the propriety of the deeply controversial warrantless wiretapping program, and the scope of the so-called "state secrets" privilege.

The case concerned the Oregon branch of an Islamic charity known as Al-Haramain, based in Saudi Arabia and that the US Department of Justice (DoJ) alleged to be an Al-Qeada financier.

Not only was it the last case to reach closure - the other warrantless wiretapping cases were short-circuited by the US Congress, which granted immunity to the telcos involved - but it has been almost from the beginning the most bizarre.

The case survived because it was the only one that named the government as a defendant - the others had scrupulously avoided naming the government so the government would not intervene and invoke the state secrets privilege.

This is an evidentary privilege afforded to protect national security, and something that had been stretched beyond recognition by the previous Bush administration, and to a lesser extent, the Obama administration.

It is an evidentiary privilege that had already been controversial in legal circles due to the fact that in the landmark Supreme Court case that largely defined it, United States vs Reynolds, the government had lied through its teeth. The state also lied long afterwards, once the relevant documents were declassified and it emerged the government had sought to cover up run-of-the-mill negligence responsible for the deaths of several airmen.

Against this backdrop, the Bush administration, with its color-coded threat levels and politically minded fearmongering, began to assert the privilege in the broadest possible way, by claiming that any litigation over the warrantless wiretapping program threatened national security. It also waged a multiyear strategy of stalling what could not be pushed through Congress.

The Office of Foreign Assets Control (OFAC), which largely deals with money laundering issues, had been investigating ties between Al-Haramain and associates of Osama Bin Laden.

In the course of that investigation, OFAC obtained records of NSA wiretaps of conversations between Al-Haramain and its lawyers. In the subsequent criminal proceeding, OFAC mistakenly turned over copies of the wiretap transcripts to the lawyers, who then filed suit in federal court under a section of the Foreign Intelligence Surveillance Act that allows for damages in a civil suit for violations of FISA.

The Kafka-esque proceedings began in Oregon and were subsequently transferred to San Francisco, California, where it was consolidated with the other warrantless wiretapping cases.

Had the cases been tried in Virginia or Washington DC, where the courts tend to toe the government line on national security matters, the outcome might have been different. The Ninth Circuit in San Francisco, though, held to a traditional, narrow reading of the privilege - namely, that it is evidentiary in nature and not grounds for throwing out litigation in its entirety.

Although the government under both Bush and Obama repeatedly ignored court orders, and the attorneys surveilled were prohibited from testifying even to their own recollection of the documents, it ultimately did not matter.

It didn't matter, because so much material about both Al-Haramain and the warrantless wiretapping program had already entered the public record that Judge Walker ruled there was no disputed material fact in the case. In doing so, he granted a rare victory for civil libertarians against the national security state.

Judge Walker has scheduled a hearing to determine the nature and scope of damages, which will probably be the end of one of the strangest cases in American jurisprudence.

The other cases in this whole episode had floundered on the shoals of what is known in legalese as "standing": namely, the ability to assert an individualized harm in the face of government secrecy. It turns out, that the government is not that good at keeping secrets, after all, a fact that proved its undoing. ®

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