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Islamic charity seeks summary judgment on NSA wiretapping case

By Bernard Hibbitts (editor) and University of Pittsburgh School of Law students.

[JURIST] The Al-Haramain Islamic Foundation on Wednesday filed a request for partial summary judgment concluding that the National Security Agency (NSA) illegally wiretapped several conversations between the charity and its lawyers. The organization is suing the government for the wiretapping and is seeking both disclosure of what was intercepted and monetary damages. Al-Haramain argues that there is "no genuine issue of material fact" as to whether the NSA recorded their conversations in violation of the Foreign Intelligence Surveillance Act (FISA), unless the government can produce evidence of a classified warrant to do so. The motion also rejects the government's claim that FISA is an unconstitutional intrusion on executive authority, arguing that the law overrides that authority:If the Executive Branch were free to ignore FISA in the name of national security, then the Executive Branch would also be free, at its unfettered discretion, to ignore a judgment by this Court of defendants' liability for violating FISA. That would not bode well for the future of the constitutional separation of powers, for it would concentrate too much power in the President.Al-Haramain notes that several prominent members of the Obama administration, including Attorney General Eric Holder, Solicitor General Elena Kagan and Obama himself have previously admitted that the President has neither inherent authority nor authority under the 2001 Authorization for Use of Military Force (AUMF) to disregard FISA. Hearings in the lawsuit are scheduled to begin in September in the US District Court for the Northern District of California. In February, the Ninth Circuit Court of Appeals affirmed the district court's ruling denying a government appeal seeking to keep an NSA call log secret, despite its accidental release to Al-Haramain in 2004. The call log had been deemed a state secret but the decision required the government to allow the foundation to view the document. JURIST contributor Victor Comras said that District Judge Vaughn R. Walker had done a "truly remarkable job" balancing national security and due process in the case. Walker had previously dismissed the suit, finding that Al-Haramain lacked a cause of action because the state secrets privilege trumped procedural requirements under FISA.

Full post as published by JURIST - The Paper Chase on July 10, 2009 (boomark / email).