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The Daily Wildcat

The Daily Wildcat


A small victory for civil liberties

Since the 9/11 terrorist attacks and the subsequent passing of the USA PATRIOT Act, the country and the courts have been locked in a seemingly interminable debate about striking the proper balance between liberty and increased administrative power, operating as always under the guise of “”security.”” Thankfully, a recent federal court ruling scores a couple of points for liberty.

In the case of Al-Haramain Islamic Foundation v. Obama (which the current administration inherited from its predecessor), Chief Judge Vaughn Walker of San Francisco’s federal district court found that the government acted unlawfully in the warrantless wiretapping of the Al-Haramain Islamic Foundation’s offices in Ashland, Ore. The foundation, an Islamic charity organization that the government suspected of providing funding to terrorist organizations, learned of the wiretapping program when Bush Administration lawyers accidentally supplied the foundation with a classified document detailing government espionage.

The new Obama administration, far from repudiating the government’s previous position, attempted to defend it on the same grounds — that the state secrets privilege (a power recognized by the courts in United States v. Reynolds, which allows the government to exclude evidence from legal proceedings on the basis of “”national security””) was sufficient to prevent Al-Haramain from introducing the aforementioned document as evidence.

The defense’s argument, essentially, is that if citizens want to levy a suit against the government for violation of FISA (the Foreign Intelligence Surveillance Act, which regulates the physical and electronic surveillance), they have to prove such a violation. The federal government, however, is within its rights to restrict confidential evidence of such surveillance by invoking “”state secrets.”” As Walker writes in his summary judgment, “”Under defendants’ theory, executive branch officials may treat FISA as optional and freely employ the state secrets privilege to evade FISA, a statute enacted specifically to rein in and create a judicial check for executive-branch abuses of surveillance authority.””

The plaintiffs were able to make a convincing case that the federal government had been monitoring their communications with non-confidential evidence, to which the government offered no real rejoinder except for insistence that their cause célébrée of “”national security”” trumps our basic legal rights. The judge would have preferred to see a FISA warrant.

“”FISA affords civil remedies to ‘aggrieved persons’ who can show they were subjected to warrantless domestic national security surveillance; FISA takes precedence over the state secrets privilege in this case … Defendants’ various legal arguments for dismissal and in opposition to plaintiffs’ summary judgment motion lack merit: defendants have failed to meet their burden to come forward, in response to plaintiffs’ prima facie case of electronic surveillance, with evidence that a FISA warrant was obtained, that plaintiffs were not surveilled or that the surveillance was otherwise lawful.””

This is a giant step in the right direction for America, a victory for the rule of law against ever-expanding executive power. But the events of the case demonstrate with great clarity that executive overreach is not endemic to any particular party or administration but is, like it or not, an unfortunate constant of our government. Fortunately, our other branches of government are endowed with the power to resist such unconstitutional actions, and (now that the terrorism panic has somewhat subsided) appear interested in doing so.

But this case is far from over. The plaintiffs may choose to drop the elements of their claim unrelated to FISA and proceed to damages or continue with the rest of their case. Regardless, the government will almost certainly appeal to the 9th Circuit Court, where we can only hope our liberties will again be upheld.

— Ben Harper is a philosophy senior.

He can be reached at

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