The 9th U.S. Circuit Court of Appeals on Tuesday overturned a lower court’s decision that awarded damages to two lawyers whose constitutionally protected conversations with clients were wiretapped by the government.
The lawyers represented the al-Haramain Islamic Foundation, which in the early 2000s was designated a terrorist financier by the the U.S. government and the U.N. for providing monetary and logistical support “to the al-Qaida network and other terrorist organizations.”
The charity — based in Saudi Arabia, and later dissolved by the Saudi government in 2004 — turned out to be a major player in the U.S. government’s so-called “War on Terror.”
In 2008 the Treasury Department announced that it had designated the entire organization as having aided the al-Qaida terrorist network, and froze assets held “by any office of the AHF organization under U.S. jurisdiction.” U.S. citizens were prohibited by the Treasury Department from engaging in any transactions with AHF.
American officials told The Associated Press in 2009, however, that only a small percentage of funds raised by the charity were diverted to al-Qaida, and that only a few people within the organization knew that funds were being sent to finance terrorists. They also conceded, however, that al-Haramain and similar charities were major terrorist funding sources and that closed charities were operating overseas under new names with new bank accounts.
In September 2011, the former head of the U.S. branch was sentenced to 33 years in prison for lying about efforts to covertly send $130,000 from the United States to religious extremists in Chenchnya.
The AHF filed charges against the NSA in February 2006, alleging that the NSA had illegally wiretapped conversations between AHF and its lawyers. AHF’s lawyers — two Americans — originally won that case, and were awarded $200,000 each and $2.5 million in legal fees.
On Tuesday, however, the San Francisco-based appeals court decided that the original decision was wrong and dismissed the lawsuit and the earlier award.
In its decision, the court said that citizens can only sue for damages after the government acts on information obtained improperly, and cannot win damages for the mere unlawful collection of information, per the Foreign Intelligence Surveillance Act.
The lawyer for the two attorneys, Jon Eisenberg, told Wired that the case was the “only chance to litigate and hold anybody accountable for the warrantless wiretapping program.”
“As illegal as it was, it evaded accountability,” said Eisenberg.
The Electronic Frontier Foundation, a San Francisco-based digital rights group, has been waging its own fight against the U.S. government’s use of warrantless electronic surveillance. EFF’s lawsuit, Jewel v. NSA, is aimed toward ending “the NSA’s dragnet surveillance of millions of Americans and holding accountable the government officials who illegally authorized it.”
Cindy Cohn, legal director at EFF, noted in a blog post Tuesday that the ruling does not exonerate the government.
“To the contrary, the best that they could say is that they they got off on a pure technicality,” she said.
“There is nothing in this opinion, or in the whole course of this litigation, that undermines the basic revelation: that President Bush authorized the warrantless illegal and unconstitutional wiretapping of the two attorneys helping this accused — and now defunct — charity in their lawful, privileged communications with their client,” said Cohn. “No one should take this as a vindication of the Bush-era policies (or Obama’s continuation of them).”