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9th Cir Overturns Award for Warrantless Wiretap Damages

By Robyn Hagan Cain on August 08, 2012 | Last updated on March 21, 2019

The Ninth Circuit Court of Appeals announced on Tuesday that the federal government does not have to fork over $2.5 million in attorneys fees to an Islamic group targeted in the Bush administration's warrantless wiretap program, reports The Associated Press.

In the opinion, the appellate court noted that the plaintiffs could only collect from individual government officials, not the federal government, but that specific claims against FBI Director Robert Mueller were not sufficient to warrant damages and could not be amended. As such, Mueller was dismissed from the case.

The decision overturns a district court ruling finding that the United States was liable to the plaintiffs for money damages based on an implied waiver of sovereign immunity. In 2010, District Judge Vaughn Walker awarded the plaintiffs $40,800 in damages and $2.5 million in legal fees in the warrantless wiretapping case.

This week, the three-judge panel said that “it is well understood that any waiver of sovereign immunity must be unequivocally expressed.”

From a practical standpoint, the ruling means that the plaintiff, Al Haramain Islamic Foundation, will not collect damages.

Judge Margaret McKeown wrote for the panel, “This case effectively brings to an end the plaintiffs’ ongoing attempts to hold the executive branch responsible for intercepting telephone conversations without judicial authorization.”

Judge McKeown, however, noted that the decision to bar damages was based on a legal loophole rather than the merits of Al Haramain’s claims, and explicitly rejected the government’s contention that the plaintiffs sued in an attempt at “game-playing.”

The Electronic Frontier Foundation, which has been actively involved in investigating the warrantless wiretapping program, expressed disappointment in the decision.

EFF Attorney Cindy Cohn wrote on the organization’s website, “This ruling certainly does not exonerate the government. To the contrary, the best that they could say is that they got off on a pure technicality of Congressional drafting … No one should take this as a vindication of the Bush-era policies (or Obama’s continuation of them).”

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