graphic: Scruffy Dan and Breanne via Flickr

Judge Walker just issued the following ruling in the al-Haramain case:

The court now determines that plaintiffs have submitted, consistent with FRCP 56(d), sufficient non-classified evidence to establish standing on their FISA claim and to establish the absence of any genuine issue of material fact regarding their allegation of unlawful electronic surveillance; plaintiffs are therefore entitled to summary judgment in their favor on those matters. Defendants’ various legal arguments for dismissal and in opposition to plaintiffs’ summary judgment motion lack merit: defendants have failed to meet their burden to come forward, in response to plaintiffs’ prima facie case of electronic surveillance, with evidence that a FISA warrant was obtained, that plaintiffs were not surveilled or that the surveillance was otherwise lawful.

In the absence of a genuine issue of material fact whether plaintiffs were subjected to unlawful electronic surveillance within the purview of FISA and for the reasons fully set forth in the decision that follows, plaintiffs’ motion for summary judgment on the issue of defendants’ liability under FISA is GRANTED.

Walker is basically saying, “Well, government, if you won’t give us any evidence to prove you legally wiretapped al-Haramain, then they win!”

As he points out here, the government had a way to defend against al-Haramain’s case directly, in camera, but they refused to avail themselves of it.

In FISA proceedings, 50 USC § 1806(f) provides a procedure by which the government may do this in camera, thus avoiding the disclosure of sensitive national security information. See In Re NSA Telecom Litigation, 564 F Supp 2d at 1131-35. Defendants declined to avail themselves of section 1806(f)’s in camera review procedures and have otherwise declined to submit anything to the court squarely addressing plaintiffs’ prima facie case of electronic surveillance.

Which is why al-Haramain wins.

In response to the government’s argument that it shouldn’t be held liable for illegally wiretapping al-Haramain because the illegal program is no longer in place, Judge Walker reminds that al-Haramain has asked for relief that would still be important–notably, the purging of any records collected illegally.

Plaintiffs seek, for example, a declaration that defendants’ warrantless surveillance of plaintiffs “is” unlawful, which may be construed to encompass past surveillance; and orders requiring defendants to turn over to plaintiffs, purge and/or destroy files and records containing information obtained by means of unlawful electronic surveillance. Defendants do not explain what prudential considerations would prohibit such equitable relief, and the court is aware of none.

Thing is, there are a number of reasons to suspect that the government can’t purge such information. So even the relief discussions may get contentious.



Marcy Wheeler aka Emptywheel is an American journalist whose reporting specializes in security and civil liberties.