Today the Ninth Circuit Court of Appeals dismissed the warrantless wiretapping case, Al Haramain Islamic Foundation v. Obama, on the technical legal basis known as sovereign immunity.  

Essentially, on a complex statutory analysis, the court ruled that the only claim left in the case, for money damages under 50 U.S.C. section 1810, could not be brought against the government itself, and instead could only be brought against government officials in their individual capacity. The court then ruled that the specific claims made against an official in his individual capacity, FBI Director Mueller, were not sufficient and could not be amended. 

While the analysis is complex, the upshot is clear and very troubling.

First, the Court ruled that Congress in passing this section of FISA created a cramped statute that, at least in section 1810, only allows a claim for redress if the government uses the information it illegally gathers, and creates no a remedy against the government for the unlawful collection of information. Apparently, when it came to granting a legal claim for damages, Congress intended to allow the government to do as much wiretapping in violation of the law as it wanted to, and only allow individuals to sue for use of the information illegally collected.  It seems unlikely that the American people believe that the line should be drawn in this strange way.

Additionally, the ruling certainly does not exonerate the government. To the contrary, the best that they could say is that they they got off on a pure technicality of Congressional drafting.  There is nothing in this opinion, or in the whole course of this litigation, that undermines the basic revelation: that President Bush authorized the warrantless illegal and unconstitutional wiretapping of the two attorneys helping this accused -- and now defunct -- charity in their lawful, privileged communications with their client.  No one should take this as a vindication of the Bush-era policies (or Obama's continuation of them).

Finally, this ruling will have little, if any, affect on the EFF's ongoing litigation Jewel v. NSA, where we seek to stop the ongoing surveillance of millions of innocent Americans, also without proper warrants or other judicial oversight.  Jewel has many causes of action, not just 50 U.S.C. section 1810, and it seeks an injunction to stop ongoing behavior, not just monetary damages for past acts.  So while we don't agree with the Ninth Circuit's ruling here, it will not prove a roadblock to our efforts to stop the spying. We've moved for a ruling in the Jewel case that FISA preempts the state secret privilege and hope to have that motion heard by the District Court in the fall.