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Appeals court dismisses lawsuit over warrantless wiretap program

By Bill Mears, CNN Supreme Court Producer
updated 3:11 AM EDT, Wed August 8, 2012
STORY HIGHLIGHTS
  • Al-Haramain said its overseas communications were illegally monitored
  • Court said Congress never waived immunity for government officials
  • Justice Department was sharply criticized by appeals court

(CNN) -- A one-time American-based Islamic group cannot sue the government over claims it was targeted by the government's once-secret Terrorist Surveillance Program, a federal court has ruled.

The San Francisco-based 9th Circuit U.S. Court of Appeals on Tuesday unanimously tossed out a lawsuit by the now-closed Al-Haramain Islamic Foundation. The federal government had listed the Ashland, Oregon, chapter as a supporter of terrorism in 2004.

The group sued, saying its private overseas communications were unconstitutionally being monitored under the Bush administration's warrantless wiretap program. That spy program was unveiled in a 2005 New York Times article that said government officials were working with private telecom companies to secretly monitor telephone and e-mail traffic of targeted individuals and groups, both domestic and international.

Federal officials later publicly acknowledged the existence of the program, which was then officially authorized by Congress in 2008.

"This case effectively brings to an end the plaintiffs' ongoing attempts to hold the Executive Branch responsible for intercepting telephone conversations without judicial authorization," said the appeals court.

The decision overturns a federal judge's earlier award of more than $2.5 million to attorneys working for Al-Haramain.

At issue was whether the federal government was liable from such suits. The Bush administration in 2008 had separately granted the telecom companies "retroactive immunity" from any lawsuits.

The appeals court said Congress had never waived immunity for government officials over alleged state eavesdropping, even if constitutional rights were violated as a result of improper government conduct.

"Al-Haramain can bring a suit for damages against the United States for use of the collected information, but cannot bring suit against the government for collection of the information itself," the court concluded. "Although such a structure may seem anomalous and even unfair, the policy judgment is one for Congress, not the courts."

The Islamic foundation said two of its U.S.-based lawyers had their telephone conversations with clients in Saudi Arabia secretly monitored, without a judge's prior approval. Lawyers for the group said they were in a Catch-22, unable to prove the government used the information from the wiretaps against Al-Haramain, after the government cited national security and state secrets.

While ruling for the government, the appeals court sharply criticized Justice Department lawyers who had claimed in court papers the plaintiffs were engaged in "game-playing" by continuing their lawsuit for years.

"In light of the complex, ever-evolving nature of this litigation, and considering the significant infringement on individual liberties that would occur if the Executive Branch were to disregard congressionally-mandated procedures for obtaining judicial authorization of international wiretaps, the charge of 'game-playing' lobbed by the government is as careless as it is inaccurate," said Judge Margaret McKeown, writing on behalf of her two colleagues.

The case is al-Haramain Islamic Foundation v. Obama (No. 11-15468).

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