On February 28, 2006, Al-Haramain Oregon (a non-profit organization) and two of its attorneys filed a lawsuit in the U.S. District Court for the District of Oregon under the Foreign Intelligence Surveillance Act, 50 U.S.C. §§ 1801-1812 against the U.S. Government. The plaintiffs asked the court for injunctive relief and damages, claiming that the government violated FISA by conducting warrantless electronic surveillance of their communications. Specifically, the plaintiffs claimed that the government's actions violated the separation of powers, the First Amendment, the Fourth Amendment, the Sixth Amendment, and the International Covenant on Civil and Political Rights.
On September 7, 2006, Judge Garr M. King denied the government's motion to dismiss but granted its motion to prevent access to a sealed classified document that had been inadvertently released to plaintiffs. Al-Haramain Islamic Found., Inc. v. Bush, 451 F. Supp. 2d 1215 (D. Or. 2006). The plaintiffs appealed.
In January, 2007, the Multi District Litigation (MDL) Panel transferred the case to the Northern District of California, as part of a multi-district litigation consolidation, In Re National Security Agency Telecommunications Records Litigation, NS-CA-11
, in this Clearinghouse. On April 30, 2007, the Ninth Circuit officially consolidated the plaintiffs' appeal with with Hepting v. AT & T, NS-CA-0004
, in this Clearinghouse. However, on November 16, 2007, the Ninth Circuit severed the two cases from each other and ordered that the cases would no longer be consolidated for any purpose. Hepting v. AT & T, 508 F.3d 898, 899 (9th Cir. 2007).
On November 16, 2007, the Ninth Circuit issued a second opinion specifically addressing the appeal from this case, reversing and remanding the district court's order. Judge McKeown held that (1) state secrets privilege did not protect the subject matter of the plaintiffs' challenge; but (2) that privilege protected the sealed document the plaintiffs relied on; (3) the district court should not have permitted in camera review of affidavits attesting to the plaintiffs' attorneys' memories of the document; and (4) the plaintiffs lacked standing to challenge without the sealed document. Al-Haramain Islamic Found., Inc. v. Bush, 507 F.3d 1190 (9th Cir. 2007).
Meanwhile, in January, 2007, the case was transferred to the Northern District of California, as part of a multi-district litigation consolidation. On July 2, 2008, Judge Vaughn Walker of the Northern District of California held that FISA preempted the state secrets privilege with respect to foreign telecommunications surveillance. Judge Walker also held that the plaintiffs could not use a sealed classified document to establish their status as "aggrieved persons" within the meaning of FISA, but he also granted them leave to amend the complaint, which the plaintiffs did. In re Nat'l Sec. Agency Telecommunications Records Litig., 564 F. Supp. 2d 1109 (N.D. Cal. 2008).
On January 5, 2009, Judge Walker denied government motions to dismiss the plaintiffs' claims. In re Nat'l Sec. Agency Telecommunications Records Litig., 595 F. Supp. 2d 1077 (N.D. Cal. 2009).
On May 22, 2009, Judge Walker denied the government's third motion to dismiss and granted the plaintiffs' motion for discovery pursuant to 50 U.S.C. § 1806(f). The order provided for plaintiffs' counsel to obtain top secret/sensitive compartmented information security clearances and ordered the government to review its classified submissions in this case and determine whether any could be declassified. In re Nat'l Sec. Agency Telecommunications Records Litig., MDL. 06-1791VRW, 2009 WL 1468792 (N.D. Cal. May 22, 2009).
On March 31, 2010, Judge Walker ordered entry of a judgment in favor of the plaintiffs. Judge Walker held that (1) the private remedy provision of FISA implicitly waived the government's sovereign immunity; (2) the prior mandate did not preclude plaintiffs from attempting to establish standing under FISA; (3) the defendants were equitably estopped from arguing that a valid FISA warrant existed; (4) the defendants violated FISA; and (5) the FBI director was not liable in his official capacity. In re Nat'l Sec. Agency Telecommunications Records Litig., 700 F. Supp. 2d 1182 (N.D. Cal. 2010). On December 22, 2010, Judge Walker awarded the plaintiffs about $2.5 million in attorneys' fees and about $41,000 to two of the three plaintiffs in liquidated damages. The defendants appealed.
On December 5, 2012, the Ninth Circuit affirmed in part, reversed in part, and vacated the judgment in favor of the plaintiffs. Writing for the Ninth Circuit, Judge McKeown held that (1) the government did not waive sovereign immunity under the civil liability provision of FISA, reversing the district court's order, and (2) the FBI director was not liable, affirming the district court's order. As a result, the Ninth Circuit dismissed all of the claims, ending the case. Al-Haramain Islamic Found., Inc. v. Obama, 705 F.3d 845 (9th Cir. 2012). This opinion amended and superseded the opinion from August 7, 2012, 690 F.3d 1089, which is almost identical to the amended opinion. The amended opinion simply omits a more detailed explanation of the procedures Congress required for certain sections of FISA (Section 2712(b)) where there was a waiver of sovereign immunity.Jessica Kincaid - 06/29/2014