January 5, 2009 | By Kurt Opsahl

Al-Haramain Warrantless Spying Case Can Proceed

Today, Chief Judge Vaughn Walker of the United States District Court in San Francisco denied the government's third motion to dismiss the Al-Haramain v. Bush litigation. The ruling means that the case can proceed and the court also set up a process to allow the Al Haramain plaintiffs to prosecute the case while protecting classified information.

Al-Haramain Islamic Foundation, the Oregon chapter of an Islamic charity, sued the Bush Administration for the illegal surveillance of the organization and its attorneys as part of the NSA warrantless wiretapping program. The case was based on a secret document that was inadvertently disclosed by the government that, according to the plaintiffs, demonstrates that they were subjected to unlawful electronic surveillance outside the scope of the Foreign Intelligence Surveillance Act (FISA).

In late 2007, the 9th Circuit Court of Appeals ruled that despite the disclosure, the "Sealed Document" itself was a state secret, but sent the case back to the District Court to determine whether the FISA law nonetheless allowed the case to go forward, under a doctrine called "preemption." Last summer, the Court had ruled that FISA does preempts the state secrets privilege, and gave Al-Haramain the right to amend its complaint to show that they were "aggrieved persons" within the meaning of FISA through evidence other than the Sealed Document. If they could do so, the case could proceed.

In today's ruling, the Court held that in their amended complaint the Al-Haramain plaintiffs had presented sufficient evidence that they were "aggrieved persons" and rejected the Government's claims to the contrary, saying: "Without a doubt, plaintiffs have alleged enough to plead 'aggrieved persons' status so as to proceed to the next step in proceedings . . ."

In order to allow litigation to proceed while keeping the secrets under wraps, the Court ordered the government to arrange security clearances for Al-Haramain's attorneys. The Court also ordered the government to allow Judge Walker to review the Sealed Document in his chambers by January 19th. Finally, the Court required the government to review the classified submissions in the case, and declassify as much as possible. The Court will schedule a hearing later this month to plan next steps.

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