What Al-Haramain Says, And What It Doesn’t Say

The New York Times reports on Judge Walker’s new decision in Al-Haramain Islamic Foundation v. Obama with the following opening:




I’ve seen some similar reports online, so I thought I would register a somewhat technical objection to this characterization of the opinion. The Obama Administration wasn’t arguing that the surveillance program was lawful. As a result, the decision doesn’t rule that the program was unlawful. Rather, the Obama Administration was just arguing that Judge Walker couldn’t reach the merits of the case because of the state secrets privilege. After Judge Walker rejected the state secrets privilege claim, the case was over: DOJ not having argued that warrantless monitoring was lawful, Walker had no choice but to grant relief to the plaintiffs on their claim.

As I said, this is sort of a technical objection: It’s quite right that the plaintiffs prevailed in their legal claim that they were illegally subject to surveillance. And as I have written many times before, I happen to agree that the Bush Administration’s arguments were quite weak. But the opinion isn’t quite what the Times is reporting: The decision today wasn’t actually about the lawfulness of the warrantless surveillance program.

To be fair, if you read on in the Times story, it later adds some caveats that recognize the problem. It states:




I greatly appreciate the Times‘ acknowledgment that this is the lawyer’s spin. And I certainly recognize the practical difficulty of accurately characterizing a complicated and technical 45-page opinion within minutes after the opinion is released. At the same time, I think it’s pretty clear that the lawyer’s spin isn’t accurate here. DOJ wasn’t arguing that FISA was not binding. That was the Bush Administration’s position in the past, but not the position the Obama Administration was taking.

Rather, the part about FISA not being “optional” is from a part of the opinion in which Judge Walker was contemplating how a strong states secrets privilege would weaken the Executive’s incentive to follow the FISA statute. If the government knows it can’t be sued for breaking the law, Walker reasoned, it can essentially treat the statute as optional. (See page 27 of the slip opinion). Judge Walker didn’t want to interpret the states secrets privilege in a way that would let an Executive branch do that, so he interpreted the privilege narrowly to help the civil lawsuit parts of FISA provide a stronger incentive to follow the law.

Put another way, Judge Walker rejected a broad view of the states secrets privilege because he though it would not give the government enough of an incentive to follow the law. He did not reject the position that the Government was free to ignore the law, as that was not a position either side was arguing in the case.