May 22, 2009 | By Kurt Opsahl

Judge Takes Government to Task in Al-Haramain Spying Case

Today, United States District Court Chief Judge Vaughn Walker took the government to task for failing to obey his prior orders in Al-Haramain v. Obama (formerly known as Al-Haramain v. Bush), asking the government to explain why he should not sanction the government by holding that the plaintiffs win the warrantless wiretapping lawsuit.

On January 5, Chief Judge Walker had denied the government's third motion to dismiss the Al-Haramain litigation and set up a process to allow the Al Haramain plaintiffs to prosecute the case while protecting classified information. On February 28, 2009, the Ninth Circuit Court of Appeals denied the government's appeal of that order. The government did not seek an appeal to the Supreme Court.

Today, the Court noted the government was "continuing to assert legal positions already specifically rejected by the court in previous orders" and "government officials in one or
more defendant agencies, including the NSA Director ... are refusing to cooperate with the court’s orders." Judge Walker ordered the government to show cause as to "why, as a sanction for failing to obey the court’s orders" the government "should not be prohibited ... from opposing the liability" for spying without warrants and that the "court should not deem liability ... established and proceed to determine the amount of damages to be awarded to plaintiffs." A hearing is set for June 3, 2009 in the San Francisco federal court.

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).

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