Government Cannot be Sued for Violating its Own Wiretapping Laws

There’s more bad news on the Fourth Amendment front as the appeals court reviewing a lawsuit filed against the US government for illegally spying on American citizens has declined to rehear the Al-Haramain case.

A federal appeals court is refusing to reconsider its August ruling in which it said the federal government may spy on Americans’ communications without warrants and without fear of being sued.

The original decision by a three-judge panel of the 9th U.S. Circuit Court of Appeals this summer reversed the first and only case that successfully challenged President George W. Bush’s once-secret Terrorist Surveillance Program.

Without comment, the San Francisco-based appeals court announced Wednesday that it would not rehear (.pdf) the case again with a larger panel of 11 judges, effectively setting the stage for a Supreme Court showdown. The appeals court Wednesday also made some minor amendments (.pdf) to its August ruling, but the thrust of it was the same as before.

Not only does this mean the plaintiffs will have to take the case to the Supreme Court (if it will hear the case), but it also means the damages awarded ($20,000 each for the two plaintiffs and $2.5 million in legal fees) have been reversed.

This also means the Bush’s Terrorist Surveillance Plan will continue unchecked as citizens will be unable to bring suits against the government for warrantless spying. The decision rests on a couple of dubious items: a “missing” sovereign immunity waiver and a document mistakenly sent to the plaintiffs that was later designated a “state secret.”

The San Francisco-based appeals court had ruled that when Congress wrote the law regulating eavesdropping on Americans and spies, it never waived sovereign immunity in the section prohibiting targeting Americans without warrants. That means Congress did not allow for aggrieved Americans to sue the government, even if their constitutional rights were violated by the United States breaching its own wiretapping laws…

A lower court judge found in 2010 that two American lawyers’ telephone conversations with their clients in Saudi Arabia were siphoned to the National Security Agency without warrants. The allegations were initially based on a classified document the government accidentally mailed to the former al-Haramain Islamic Foundation lawyers Wendell Belew and Asim Ghafoor.

The document was later declared a state secret, removed from the long-running lawsuit and has never been made public.

Concern about the government’s ability to designate nearly anything as a “state secret” in order to prevent the release or use of possibly damning evidence has already been discussed by the Supreme Court during oral arguments in the Clapper v. Amnesty International case. In this case, the belated “state secret” designation effectively limited the plaintiffs to citing circumstantial evidence, which is far less effective than producing an actual document showing that the NSA was doing exactly what the plaintiffs claimed it was.

Between the “sovereign immunity” that is unlikely to ever be waived and the ability to designate damning evidence post-facto as “state secrets,” the NSA has set itself up with the ability to run a constitutionally dubious, but legally sound, domestic spying program. The system of checks and balances our nation was formed on now more closely resembles a series of erected walls protecting government agencies from being held accountable for their actions.

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