Al-Haramain v. Obama

Concerning Electronic Surveillance Records Under the State Secrets Privilege

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Following the terrorist attacks on September 11, 2001, President George W. Bush authorized the National Security Agency ("NSA") to conduct a warrantless communications surveillance program. The program intercepted international communications into and out of the United States of persons alleged to have ties to Al Qaeda and other terrorist networks. Though the President and his administration have provided some information to the public about the Terrorist Surveillance Program ("TSP"), its operating parameters remain murky, and certain details remain unreleased.

The New York Times first revealed the program’s existence in late 2005. One day after The New York Times’ story broke, President Bush informed the country in a public radio address that he had authorized the interception of international communications of individuals with known links to Al Qaeda and related terrorist organizations. Two days after President Bush’s announcement, then-Attorney General Alberto Gonzales disclosed that the program targeted communications where the government had concluded that one party to the communication was a member of, or affiliated with, Al Qaeda. The Department of Justice followed these and other official disclosures with a lengthy white paper in which it both confirmed the existence of the surveillance program and also offered legal justification of the intercepts.

The government’s voluntary disclosures did not go unnoticed. Al-Haramain Islamic Foundation and two of its attorneys, (collectively, "Al-Haramain") brought suit against President Bush and other executive branch agencies and officials. They claimed that they were subject to warrantless electronic surveillance in 2004 in violation of the Foreign Intelligence Surveillance Act, 50 U.S.C. ยงยง 1801 et seq. ("FISA"), various provisions of the United States Constitution, and international law. The government countered that the suit is foreclosed by the state secrets privilege, an evidentiary privilege that protects national security and military information in appropriate circumstances.

Al-Haramain was a Muslim charity which was active in more than 50 countries. Its activities included building mosques and maintaining various development and education programs.

In February 2004, the Office of Foreign Assets Control of the Department of Treasury temporarily froze Al-Haramain’s assets pending a proceeding to determine whether to declare it a "Specially Designated Global Terrorist." In June 2004, the United Nations Security Council identified Al-Haramain as an entity belonging to or associated with Al Qaeda. In August 2004, during Al-Haramain’s civil designation proceeding, the Department of the Treasury produced a number of unclassified materials that were given to Al-Haramain’s counsel and two of its directors.

The Department of the Treasury inadvertently included the Sealed Document, which was labeled "TOP SECRET," among these materials. Al-Haramain’s counsel copied and disseminated the materials, including the Sealed Document, to Al-Haramain’s directors and co-counsel, including Wendell Belew and Asim Ghafoor. In late August, the FBI learned of the Sealed Document’s inadvertent disclosure. In October of 2004, the FBI retrieved all copies of the Sealed Document from Al-Haramain’s counsel, though it did not seek out Al-Haramain’s directors to obtain their copies.

Al-Haramain subsequently filed a lawsuit in the District Court for the District of Oregon alleging that it had been subject to warrantless electronic surveillance in violation of the FISA, and the First, Fourth, and Sixth Amendments. With their complaint, plaintiffs filed under seal the classified Sealed Document which had inadvertently been disclosed to plaintiffs' counsel.

On September 7, 2006, the district court denied the government's motion to dismiss as well as its motion for summary judgment, finding that the existence of the government's electronic surveillance program was not a secret and that no harm to the national security would occur if plaintiffs were able to prove that they were subject to surveillance without publicly disclosing any other information contained in the Sealed Document." However, the district court denied plaintiffs' motion for order compelling discovery, and ordered plaintiffs to turn over all copies of the Sealed Document on the basis that the Sealed Document was protected by the state secrets doctrine. The court certified its rulings for immediate appeal.

The Ninth Circuit granted interlocutory review and held that the subject matter of the litigation, the government's surveillance program, is not protected by the state secrets privilege because President Bush publicly acknowledged the existence of the program. However, the court held that the Sealed Document and information regarding whether the government conducted surveillance of Al-Haramain are protected by the state secrets privilege. Further, the court ruled that Al-Haramain cannot establish standing without the Sealed Document. The Ninth Circuit remanded the case for a determination of whether FISA preempts the state secrets privilege.

The case was reassigned by the Judicial Panel on Multidistrict Litigation to the Northern District of California. On January 9, 2007, plaintiffs filed an action for damages and equitable relief against defendants in the Northern District of California. On March 31, 2010, the district court granted plaintiffs' motion for summary judgment on their claim that defendants violated the Foreign Intelligence Surveillance Act and dismissed the claims against FBI Director Robert Mueller. On December 21, 2010, Judge Vaughn Walker in the Northern District of California issued the final order granting the plaintiffs $2.5 million in damages and attorney fees as well as $20,400 in liquidated damages for the two lawyers involved. The district court denied plaintiffs' requests for equitable relief.

In February 2011, the defendants filed notice of their intention to appeal the decision of the district court to the U.S. Court of Appeals for the Ninth Circuit.

EPIC's Interest in Al-Haramain

EPIC has a strong interest in all litigation involving FISA, and has previously recommended greater accountability for the Foreign Intelligence Surveillance Court.

Legal Documents

District Court Remand

9th Circuit Court of Appeals


Supreme Court Precedent

Circuit Court Opinions on Warrantless Wiretapping and the State Secrets Privilege

Journal Articles and Books


News Reports

Print Media


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