Much of Chief Judge Vaughn Walker’s latest message for the Justice Department in a closely watched warrantless wiretap case is fairly simple: you could have played ball, but you didn’t. Now deal with the consequences.
Walker granted summary judgment Wednesday to Al-Haramain, an Oregon Islamic group which claims it was placed under illegal surveillance. The ruling comes after years of litigation, in which the government successfully defeated Al-Haramain’s attempt to use a classified document to prove it was a target of illegal eavesdropping. But Walker allowed Oakland lawyer Jon Eisenberg to file an amended complaint, based entirely on non-classified evidence, in order to establish standing.
Faced with these fresh allegations, the government didn’t respond with facts, Walker wrote.
“Defendants could readily have availed themselves of the court’s processes to present a single, case-dispositive item of evidence at one of a number of stages of this multi-year litigation: a FISA warrant,” Walker wrote. “They never did so, and now illogically assert that the existence of a FISA warrant is a fact within the province of the [state secrets privilege], not FISA.”
Therefore, Walker ruled that the government never obtained a warrant for Al-Haramain, which entitles the group to damages and attorney’s fees. Should Eisenberg decide to drop Al-Haramain’s remaining claims, Walker offered to move straight to a decision on damages.