What Al-Haramain Says, And What It Doesn’t Say

The New York Times reports on Judge Walker’s new decision in Al-Haramain Islamic Foundation v. Obama with the following opening:

A federal judge ruled Wednesday that the National Security Agency’s program of surveillance without warrants was illegal, rejecting the Obama administration’s effort to keep shrouded in secrecy one of the most disputed counterterrorism policies of former President George W. Bush.

In a 45-page opinion, Judge Vaughn R. Walker ruled that the government had violated a 1978 federal statute requiring court approval for domestic surveillance when it intercepted phone calls of Al Haramain, a now-defunct Islamic charity in Oregon, and of two lawyers representing it in 2004. Declaring that the plaintiffs had been “subjected to unlawful surveillance,” the judge said the government was liable to pay them damages.

The ruling delivered a blow to the Bush administration’s claims that its surveillance program, which Mr. Bush secretly authorized shortly after the terrorist attacks of Sept. 11, 2001, was lawful. Under the program, the National Security Agency monitored Americans’ international e-mail messages and phone calls without court approval, even though the Foreign Intelligence Surveillance Act, or FISA, required warrants.

I’ve seen some similar reports online, so I thought I would register a somewhat technical objection to this characterization of the opinion. The Obama Administration wasn’t arguing that the surveillance program was lawful. As a result, the decision doesn’t rule that the program was unlawful. Rather, the Obama Administration was just arguing that Judge Walker couldn’t reach the merits of the case because of the state secrets privilege. After Judge Walker rejected the state secrets privilege claim, the case was over: DOJ not having argued that warrantless monitoring was lawful, Walker had no choice but to grant relief to the plaintiffs on their claim.

As I said, this is sort of a technical objection: It’s quite right that the plaintiffs prevailed in their legal claim that they were illegally subject to surveillance. And as I have written many times before, I happen to agree that the Bush Administration’s arguments were quite weak. But the opinion isn’t quite what the Times is reporting: The decision today wasn’t actually about the lawfulness of the warrantless surveillance program.

To be fair, if you read on in the Times story, it later adds some caveats that recognize the problem. It states:

Judge Walker did not directly address the legal arguments made by the Bush administration in defense of the N.S.A. program after The New York Times disclosed its existence in December 2005: that the president’s wartime powers enabled him to override the FISA statute. But lawyers for Al Haramain were quick to argue that the ruling undermined the legal underpinnings of the war against terrorism.

One of them, Jon Eisenberg, said Judge Walker’s ruling was an “implicit repudiation of the Bush-Cheney theory of executive power.”

“Judge Walker is saying that FISA and federal statutes like it are not optional,” Mr. Eisenberg said. “The president, just like any other citizen of the United States, is bound by the law. Obeying Congressional legislation shouldn’t be optional with the president of the U.S.”

I greatly appreciate the Times‘ acknowledgment that this is the lawyer’s spin. And I certainly recognize the practical difficulty of accurately characterizing a complicated and technical 45-page opinion within minutes after the opinion is released. At the same time, I think it’s pretty clear that the lawyer’s spin isn’t accurate here. DOJ wasn’t arguing that FISA was not binding. That was the Bush Administration’s position in the past, but not the position the Obama Administration was taking.

Rather, the part about FISA not being “optional” is from a part of the opinion in which Judge Walker was contemplating how a strong states secrets privilege would weaken the Executive’s incentive to follow the FISA statute. If the government knows it can’t be sued for breaking the law, Walker reasoned, it can essentially treat the statute as optional. (See page 27 of the slip opinion). Judge Walker didn’t want to interpret the states secrets privilege in a way that would let an Executive branch do that, so he interpreted the privilege narrowly to help the civil lawsuit parts of FISA provide a stronger incentive to follow the law.

Put another way, Judge Walker rejected a broad view of the states secrets privilege because he though it would not give the government enough of an incentive to follow the law. He did not reject the position that the Government was free to ignore the law, as that was not a position either side was arguing in the case.

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