The case involves electronic spying on the plaintiffs without a Foreign Intelligence Surveillance Act (FISA) warrant.
Many don't know that FISA allows private parties to sue the government for violations of FISA, one such violation being surveillance without a FISA warrant.
This case had gone through appeals and it had been boiled down to a case where they could not use the classified document erroneously given to them by the government early in the case.
The gist of the summary judgment motion by the plaintiffs, brought against Bush and Obama, was that they could make out a prima facia case without classified documents.
In so doing they invoked FISA provisions that require the government to then show it had obtained a FISA warrant prior to conducting any "wire" surveillance.
The judge had held that a prima facia case had been made, and ordered the government to produce evidence that it had a warrant at the time of the surveillance.
The government, pursuant to Attorney General Holder's directions, remained cocky and refused to produce such evidence because they said the judge was wrong.
So the judge ruled against the government and for the plaintiffs.
I have a PDF copy of the decision, and will include some excerpts from it, which detail the evidence in the public record:
1. During or after the fall of 2001, President George W Bush authorized the NSA to intercept international communications into and out of the United States of persons linked to “al-Qaeda or related terrorist organizations.” [page 35].(Order Granting Summary Judgment, AL-HARAMAIN ISLAMIC FOUNDATION, INC v Obama). The thing to grasp is that any plaintiff can sue any of the bushies who have made public statements that render them liable.
2. In October 2001, the Treasury Department created “Operation Green Quest” to track financing of terrorist activities, one of the targets of which were foreign branches of the Saudi Arabia-based Al-Haramain Islamic Foundation [page 35].
3. In April 2002, the FBI created its Terrorist Financing Operations Section (“TFOS”) ... on May 13, 2003, through a Memorandum of Understanding between the Department of Justice and the Department of Homeland Security, the FBI was designated as the lead department to investigate potential terrorist-related financial transactions ... [pages 35-36].
4. TFOS “has access to data and information” from “the Intelligence Community” and has “[t]he ability to access and obtain this type of information in a time sensitive and urgent manner” ... [page 36].
5. In conducting investigations of terrorist financing, OFAC officers use “classified * * * information sources” [page 36].
6. In 2004 the FBI, under the direction of defendant Mueller, undertook activity using information produced by the NSA through the warrantless surveillance program ... [page 37].
7. The FBI’s search warrant on Al-Haramain’s Ashland, Oregon, office was executed on February 18, 2004 ... On February 19, 2004, the Treasury Department’s OFAC blocked Al-Haramain’s assets pending an investigation of possible crimes relating to currency reporting and tax laws as admitted in a press release of that date by the Treasury Department’s Office of Public Affairs; the press release contained no mention of purported links between plaintiff Al-Haramain and Osama bin-Laden [page 37].
8. Soliman al-Buthi was subjected to electronic surveillance by one or more United States government entities during telephone conversations with al-Timimi on February 1, 2003 ... Soliman al-Buthi was a senior official of Al-Haramain in 2003 [pages 37-38].
9. Soon after the blocking of plaintiff Al-Haramain’s assets on February 19, 2004, plaintiff Belew spoke by telephone with Soliman al-Buthi on the following dates: March 10, 11 and 25, April 16, May 13, 22 and 26, and June 1, 2 and 10, 2004. Belew was located in Washington DC; al-Buthi was located in Riyadh, Saudi Arabia. During the same period, plaintiff Ghafoor spoke by telephone with al-Buthi approximately daily from February 19 through February 29, 2004 and approximately weekly thereafter. Ghafoor was located in Washington DC; al-Buthi was located in Riyadh, Saudi Arabia [page 38].
10. In the telephone conversations between Belew and al-Buthi, the parties discussed issues relating to the legal representation of defendants, including Al-Haramain, named in a lawsuit brought by victims of the September 11, 2001 attacks. Names al-Buthi mentioned in the telephone conversations with Ghafoor included Mohammad Jamal Khalifa, spouse of one of Osama bin-Laden’s sisters, and Safar al-Hawali and Salman al-Auda, clerics whom Osama bin-Laden claimed had inspired him. In the telephone conversations between Ghafoor and al-Buthi, the parties also discussed logistical issues relating to payment of Ghafoor’s legal fees as defense counsel in the lawsuit [pages 38-39].
11. In a letter to Al-Haramain’s lawyer Lynne Bernabei dated April 23, 2004, OFAC Director Newcomb stated that OFAC was considering designating Al-Haramain as a SDGT organization based on unclassified information “and on classified documents that are not authorized for public disclosure.” ... In a follow-up letter to Bernabei dated July 23, 2004, Newcomb reiterated that OFAC was considering “classified information not being provided to you” in determining whether to designate Al-Haramain as an SDGT organization. On September 9, 2004, OFAC declared plaintiff Al-Haramain to be an SDGT organization [page 39].
12. In a press release issued on September 9, 2004, the Treasury Department stated that the investigation of Al-Haramain showed “direct links between the US branch [of Al-Haramain] and Usama bin Laden”; this was the first public claim of purported links between Al-Haramain and Osama bin-Laden [page 39].
13. In a public declaration filed in this litigation dated May 10, 2006, FBI Special Agent Frances R Hourihan stated that “the classified document that was inadvertently disclosed by a government employee without proper authorization” (i e, the Sealed Document) “was related to the terrorist designation” of Al-Haramain [page 40].
14. FBI Deputy Director Pistole acknowledged that the FBI “used * * * surveillance” in connection with defendant OFAC’s 2004 investigation of Al-Haramain but stated that “it was the financial evidence” provided by financial institutions “that provided justification for the initial designation” of Al-Haramain, in a speech delivered by Mr Pistole on October 22, 2007 at a conference of the American Bankers Association and American Bar Association on money laundering, the text of which appears on the FBI’s official Internet website ... A court document filed by the United States Attorney for the District of Oregon on August 21, 2007 referred to the February 19, 2004 asset-blocking order as a “preliminary designation” and the September 9, 2004 order as “a formal designation.” [page 40].
15. To allege that the above-referenced telecommunications between al-Buthi and plaintiffs Belew and Ghafoor were wire communications and were intercepted by defendants within the United States, plaintiffs cite to several public statements by government officials that most international communications today are “on a wire” and therefore subject to FISA’s warrant requirements, including: July 26, 2006 testimony by defendant Alexander and CIA Director Michael Hayden ... May 1, 2007 testimony by Director of National Intelligence Michael McConnell ... and September 20, 2007 testimony by McConnell before the House Select Intelligence Committee: “[t]oday * * * [m]ost international communications are on a wire, fiber optical cable,” and “on a wire, in the United States, equals a warrant requirement [under FISA] even if it was against a foreign person located overseas.” [pages 40-41].
16. A memorandum dated February 6, 2008, to defendant Szubin from Treasury Department Office of Intelligence and Analysis Deputy Assistant Secretary Howard Mendelsohn, which was publicly disclosed during a 2005 trial, acknowledged electronic surveillance of four of al-Buthi’s telephone calls on February 1, 2003 [page 41].
Sue the "inglorious basterds" like Cheney, then?
The next phase in the litigation is the damages and costs portion of the case.
That is tricky ground because the amount of damages can't be too speculative, so more work must be done before all that can be determined.