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Michael C. Dorf

A Federal Judge Rules Against the Government in a Warrantless Wiretapping Suit


Monday, April 5, 2010

Last week, Chief Judge Vaughn Walker of the United States District Court for the Northern District of California ruled against the federal government in a lawsuit seeking damages for warrantless wiretapping during the Bush Administration. The ruling is only the latest round in lengthy proceedings arising out the Bush policy. Although the particular warrantless wiretapping program at issue was officially terminated in 2007, like much of the handiwork of the Bush Administration in national defense, it casts a long shadow.

Indeed, as I shall explain in this column, Judge Walker's opinion–which is noteworthy for the contemptuous tone it takes towards the government–continues a pattern that was established during the Bush years: Extremely aggressive assertions of executive power tend to elicit pushback from courts that might have acquiesced in more moderate policies. The mystery–which is discussed but not fully resolved in this column–is why the Obama Administration has not learned from its predecessor's mistakes in this area.

Warrantless Wiretapping and FISA

By now it is well known that in 2001, President Bush secretly authorized the National Security Agency ("NSA") to conduct warrantless wiretapping of conversations of suspected terrorists and those with whom they were communicating, whether inside or outside the United States. Although the initiative was styled a "terrorist surveillance program" ("TSP"), there was no guarantee that it would only intercept the conversations of terrorists, or even suspected terrorists.

The TSP appears to have been illegal, as the Foreign Intelligence Surveillance Act (FISA") requires a warrant for the government to wiretap conversations that include Americans. And, although a FISA warrant is easier to obtain than a wiretapping warrant for domestic law enforcement purposes, the Bush Administration nonetheless bypassed FISA.

The same Bush Administration lawyers who sought to justify the torture of detainees relied on some of the same key arguments to claim authority for warrantless wiretapping. First, they argued that when Congress authorized the President to use military force against Al Qaeda and its allies, it was thereby providing "express statutory authorization" for warrantless electronic surveillance, as required by FISA, even though the Authorization for Use of Military Force that Congress passed said nothing whatsoever about electronic surveillance.

Second, the Bush Administration and its sympathizers argued that FISA was unconstitutional to the extent that it interfered with the President's power to conduct war in the manner he deemed most effective. This sweeping assertion of the President's authority as Commander in Chief was of a piece with the Bush Administration's views in other areas of law.

The Barriers to Prevailing in a Suit Under FISA, and the State Secrets Privilege

The arguments that the TSP was legal are quite weak. Accordingly, when Jack Goldsmith–a generally conservative law professor and attorney, but one who was less extreme than his predecessors–was tapped as the head of the Bush Administration's Office of Legal Counsel, Goldsmith concluded that the TSP was illegal.

Goldsmith's view led to a tragicomic scene at the hospital bedside of then-Attorney General John Ashcroft: Then-White House lawyer Alberto Gonzales and Chief of Staff Andrew Card tried to persuade the ailing Ashcroft to reauthorize the TSP, even though Ashcroft had temporarily ceded his powers to James Comey. The scene–memorialized in Congressional testimony and in several books–illustrates the lengths to which the Bush White House was willing to go to circumvent legal restraints.

Nonetheless, despite the illegality of the TSP, plaintiffs who have brought lawsuits to challenge it under FISA have met with little success. Section 1810 of FISA expressly grants to any "aggrieved person" (other than a foreign agent) the right to sue anyone who has violated FISA and to recover damages, including punitive damages, and attorney's fees. However, in order to bring a successful lawsuit, one must first establish that he or she has been subject to warrantless wiretapping, and because the details of such wiretapping are a closely-guarded secret, almost no one can swear to have been subject to it.

Recent Supreme Court decisions (which I discussed in an earlier column) limit the ability of all plaintiffs to bring lawsuits based on suspected wrongdoing and then rely upon the civil discovery process to turn up concrete evidence supporting their suspicion. In addition, in cases that implicate national security, there is a further, and often insuperable obstacle: the state secrets privilege.

In the 1953 case of United States v. Reynolds, the Supreme Court recognized a privilege of the government to refuse to reveal "state secrets" in litigation, where doing so would, in the government's view, jeopardize national security. The privilege has been much criticized, and subsequent investigation has shown that in the Reynolds case itself–which involved a fatal aircraft crash–the privilege was invoked more to prevent embarrassment than to protect national security. Nonetheless, the privilege remains in effect.

The Al-Haramain Case

Judge Walker's decision last week came in a case that, on the surface, looked different from many of the other FISA lawsuits. The plaintiffs, the Al-Haramain Islamic Foundation and two of its attorneys, had what appeared to be a smoking gun: The government had inadvertently handed over to them a top-secret document that proved they had been targeted for warrantless wiretapping.

Yet despite the publication of that fact, in an earlier ruling in the case the U.S. Court of Appeals for the Ninth Circuit forbade the use of the top-secret document. Although that court disagreed with the government's contention that the state secrets privilege prevented litigation that even acknowledged the existence of the TSP, the court accepted the government's argument that the plaintiffs should not be allowed to use the top-secret document in their case in any way.

Consequently, last week's ruling by Judge Walker resolved the question of whether the plaintiffs could make out a sufficient case that they had been subject to warrantless wiretapping solely based on information in the public domain. He held that they could do so and, indeed, had done so. And because the Obama Justice Department had declined to either defend the legality of the underlying TSP or produce a FISA warrant, the result was a finding on the merits for the plaintiffs. Absent reversal on appeal, the next phase of the litigation will likely focus on the question of damages.

Why the Obama Administration Lost: Asking for a Whole Loaf

Reading between the lines of last week's order, one can see Judge Walker's barely-disguised anger at the government for its intransigence. He notes that the government presented arguments that he had previously rejected. He sarcastically compliments the government for its "impressive display of argumentative acrobatics." Reading the opinion as a whole, one wonders whether the government might have fared better had it taken a less aggressive posture.

A familiar adage summarizes the position in which the government found itself: If you ask for half a loaf, you will get half a loaf; if you ask for a whole loaf, you will get nothing. (The adage puts it succinctly: "Half a loaf is better than none.") This phenomenon may well have been at work during the Bush Administration. By staking out an extremely aggressive view of executive power, the Bush Administration actually pushed the courts into a less accommodating position than they might have taken had the Administration taken a more moderate stance. Consequently, the Bush Administration was repeatedly rebuffed by the Supreme Court. (The adage does not fit exactly, however, because the Court's decisions allowed considerable room for executive policies that civil libertarians also dislike–thus, the Bush Administration still got its half a loaf; had it sought a half-loaf, it might have gotten three-quarters.)

It is not difficult to see how the Bush Administration fell into the trap of counter-productive overzealousness. Former Vice President Cheney and the lawyers who worked at the highest levels of the Administration were longtime proponents of robust executive power. They really believed that a state of war is a blank check for the President–and they maintained that belief even after Justice Sandra Day O'Connor's plurality opinion in the 2004 Hamdi case expressly rejected that proposition.

The lingering mystery is why the Obama Administration has taken an equally aggressive position on the state secrets privilege. As a Senator and a Presidential candidate, Barack Obama criticized the Bush Administration's overreaching as unnecessary and contrary to American ideals. Yet now, on state secrets, he himself seems to be overreaching as well.

Explaining the Obama Administration's Stance

What explains the Obama Administration's aggressive posture in the Al-Haramain case? One possibility is the merits of that particular case. Al-Haramain has been dissolved because of its alleged support for Al-Qaeda. The very surveillance at issue in the case may well have shown concrete evidence of such support, and if so, the Administration would have been understandably outraged at the prospect of paying damages to a front group for anti-American terrorists. Outside of the fantasies of the paranoid right, President Obama can be assumed to share the sentiments of other Americans in this respect.

But even if the Administration held this view of the underlying merits of the case, that still would not explain the Administration's invocation of the state secrets doctrine as such. After all, Al-Haramain's assets are already frozen and the President could, if he wished, seek legislation in Congress that would amend FISA to deny damages to persons or groups who have actually been linked to terrorism. Congress has already shown a willingness to weaken FISA going forward, and it likely would accept this exception to the damages provision.

Moreover, the Obama Administration has been invoking the state secrets privilege in all litigation under FISA, including litigation by journalists and other innocents who allege that their privacy has been invaded unlawfully. Thus, hostility to the plaintiffs in the Al-Haramain case cannot by itself explain the Administration's aggressiveness with respect to state secrets.

Politics might be a factor in the Administration's litigation posture in these cases. Whenever President Obama attempts to take a moderate position on issues relating to war or terrorism, he attracts charges of weakness or worse. Other elected officials, both in Congress and at the state and local level, have repeatedly proven unwilling to take an even mildly civil libertarian position, as the flap over where to try Khalid Sheikh Mohammed illustrates. Thus, even if President Obama and Attorney General Eric Holder would like to dispense with the state secrets privilege, they may have simply made a judgment that the political cost of doing so is too high.

Institutional forces probably account for much of what we are seeing in the Al-Haramain case, as well. Many Justice Department professionals continue to serve from one Administration to the next, and whether they are Republicans or Democrats, they tend to favor prosecutorial power and to disfavor private lawsuits against the government. That is simply the nature of their job.

Moreover, it makes sense for a Senator to criticize a President for overreaching, especially when the Senator and President are from different parties and when (as was true in some of the Bush Administration's assertions of power), the extension of Executive authority entails a diminution of Congressional authority. However, once he is President, a former Senator will tend to see things differently. Confident that his Administration will not abuse its authority, and more likely to view calls for transparency as simply efforts to derail his agenda, a President will come to regard as useful some of the very powers that he had formerly regarded as dangerous.

Such institutional factors were well-understood by the Framers of our Constitution. Power may not always corrupt, but it certainly distorts. The system of checks and balances–including the power of the judiciary to hold the other branches to account–takes that sobering lesson as its starting point.

Where the endpoint will be cannot yet be known. When the Supreme Court reined in the Bush Administration, Congress responded by more or less giving the President the power he had claimed. The courts might hold that the state secrets privilege does not protect the Bush Administration's TSP, and yet before the relevant judgments became fully final, Congress could retroactively provide immunity, as it did for the telecommunications companies that had cooperated with the Bush Administration in violating FISA. But even if Congress did provide immunity, that would not mean that the courts were mistaken to hold as they did; it would simply indicate that the law had changed.

On this last point, it is worth quoting the deservedly celebrated concurrence of Justice Robert Jackson in the 1952 Steel Seizure Case. Jackson concluded that even "with all its defects, delays and inconveniences, men have discovered no technique for long preserving free government except that the Executive be under the law, and that the law be made by parliamentary deliberations. Such institutions may be destined to pass away. But it is the duty of the Court to be last, not first, to give them up."

In holding the Executive to its obligations under the duly-enacted FISA, last week's decision by Judge Walker was fully in the same spirit. It may not last, but if it does not, that will hardly prove that he was wrong.

Michael C. Dorf is the Robert S. Stevens Professor of Law at Cornell University. The second edition of his book, Constitutional Law Stories, is now available. He blogs at

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