WASHINGTON — When a federal court in California ruled last week that the National Security Agency’s electronic surveillance of the Oregon-based Islamic charity Al-Haramain and two of its attorneys was illegal, civil liberties advocates claimed victory. But some legal experts warn that the ruling’s narrow language mutes its impact.
U.S. District Judge Vaughn Walker ruled that the government had violated the Foreign Intelligence Surveillance Act’s protections against warrantless wiretaps of U.S. citizens and was liable to pay damages to Al-Haramain for tapping phone calls in 2004. He dismissed the argument first put forth by the Bush administration but continued under President Barack Obama that the case should be dropped because it could reveal “state secrets.”
However, he gave no more than passing reference to Al-Haramain’s allegations that the federal government also violated the separation of powers principle, the First, Fourth and Sixth Amendments of the Constitution and the International Covenant on Civil and Political Rights.
“I think it’s very carefully written,” said Syracuse University law professor William Banks, director of the school’s Institute for National Security and Counterterrorism. “It does not have implications beyond the dispute. If you edit it down, it’s pretty understated.”
Louis Fisher, a specialist in constitutional law with the Law Library of Congress, agreed. He cited Walker’s decision not to hold FBI Director Robert Mueller personally liable as an indication of judicial restraint.
“It doesn’t help any other plaintiffs that don’t have classified information,” he also noted. “We’re all back to square one. Unless you’re lucky, how can you prove you’ve been injured? It would be thrown out on standing.”
Fisher’s “lucky” remark refers to a sealed document that was inadvertently disclosed by federal officials to Al-Haramain’s legal team and originally formed the basis of its case. That information was the basis of oral arguments been made in an appellate court in August 2007, but ultimately became moot after FBI Deputy Director John Pistole admitted in an October 2007 speech to the surveillance of Al-Haramain.
Richard Epstein, a professor of law at the University of Chicago who said he knows Walker personally, echoed Fisher’s assessment of the ruling as restrained.
Walker is “showing the flags,” Epstein said. “He’s showing his support for civil liberties, but he doesn’t want it to be a knockout victory lest he support something he doesn’t agree with.”
Specifically, he said Walker could be concerned about undisclosed “sets of facts, where he might think government intervention is appropriate.”
John Eastman, a Chapman University law professor and candidate for California attorney general, said that restrained rulings “have been a pattern in many of the Supreme Court cases” that have dealt with the legality of actions taken in the name of national security since 9/11. Eastman, who is a well-known defender of the constitutionality of the NSA wiretapping program, compared Walker’s ruling to the “technical” manner” in which Hamdi v. Rumsfeld, a case involving a U.S. citizen who had been deemed an “illegal enemy combatant,” was decided.
Jon Eisenberg, an attorney for Al-Haramain, admitted that Walker’s decision is narrow, but noted that the judge has given Al-Haramain until April 16 to decide if it would like to prosecute the remaining claims in the suit.
He also noted that Walker’s July 2, 2008, decision determined that FISA pre-empts the state secrets privilege.
“This is why some people are saying this is not a huge victory,” Eisenberg said in an e-mail. “Because Judge Walker did not, in his March 31, 2010, opinion, decide the presidential power issues. What they overlook, whether intentionally or simply because they don’t know the full history of the case, is that Judge Walker previously addressed the presidential power issue.”
Boston College law professor Robert Bloom noted that Walker’s decision has “no precedential value” unless it survives an appeal.
“Then it will have substantially more impact,” said Bloom.
Justice Department spokeswoman Tracy Schmaler said there has been no decision on whether to appeal Walker’s ruling.