Bay City News | December 21, 2010
The now-defunct Al-Haramain Islamic Foundation, based in Ashland, Ore., was the American branch of a Saudi Arabian group of the same name.
In September 2004, the U.S. Treasury Department declared the group a terrorist organization and froze its assets.
Today's award by U.S. District Judge Vaughn Walker followed a March decision in which he ruled that warrantless wiretapping of the foundation and its two American lawyers in 2004 violated the U.S. Foreign Intelligence Surveillance Act.
Walker reiterated in today's ruling that "the fact of such surveillance is not in doubt."
He ordered the government to pay attorneys Wendell Belew and Asim Ghafoor each $20,400 in damages for an estimated 204 days of surveillance. The amount represents penalties under the FISA law of $100 per day.
Walker also awarded Belew's and Ghafoor's eight lawyers $2.5 million in fees and $22,000 in expenses for their work on the case over nearly five years.
But Walker awarded no damages to the former foundation. He said there is "ample evidence" supporting its designation as a terrorist organization and it is not eligible for compensation because it qualifies as a foreign power.
A U.S. Justice Department spokeswoman was not immediately available for comment. The award and Walker's earlier summary judgment could be appealed.
Jon Eisenberg, the lead attorney for the plaintiffs, said that while the damages award may seem to be "not a lot in the scheme of things, it's a vindication of FISA."
"It says to the government, you did wrong, you must pay in the amount prescribed by Congress. This is not a slap on the wrist," Eisenberg said.
The lawsuit was originally filed in federal court in Oregon in early 2006, but was moved to Walker's court in San Francisco to be handled together with more than three dozen other lawsuits challenging wiretapping.
Most of the other lawsuits were filed against telephone companies for allegedly aiding the National Security Agency in wiretapping and were eventually dismissed by Walker in 2009 after Congress passed a 2008 law giving the businesses retroactive immunity from being sued. The Al-Haramain case is the only one thus far that has resulted in a damage award.
The Al-Haramain lawsuit was also unusual in that it was originally based on alleged specific evidence of wiretapping. The evidence, reportedly a top-secret phone log, was accidentally given by the Treasury Department to Al-Haramain lawyers in 2004. The FBI later retrieved all copies of the secret document, which was referred to in court filings only as the Sealed Document, and the attorneys were not allowed to cite it or refer to it.
After NSA officials refused to allow Al-Haramain lawyers to see any other classified documents that could serve as evidence in the case, Walker allowed the plaintiffs to try to prove their claim with public documents. In his summary judgment in March, he said they had done so.
In the section of today's decision awarding the attorney's fees, Walker wrote, "But this case, from the beginning, has been about more than money. Plaintiffs began this litigation five years ago because they believed that they had been illegally wiretapped by executive branch officials and wanted both to vindicate their own constitutional rights and enforce the laws that they believed were being violated. With the award of liquidated damages under FISA, plaintiffs have essentially obtained what they sought," Walker wrote.
Walker, 66, who was appointed to the court in 1990 by President George H.W. Bush, is also the judge who struck down Proposition 8, California's ban on same-sex marriage.
That decision is now on appeal to the 9th U.S. Circuit Court of Appeals.
Walker announced in September that he will retire in February.
Julia Cheever, Bay City News