(CN) – Citing sovereign immunity, the 9th Circuit on Tuesday overturned a $2.5 million judgment against the government for spying on an Islamic foundation without a warrant.
The three-judge panel in Pasadena reversed a federal judge’s December 2010 order granting more than $2.5 million in attorneys’ fees and $40,800 in liquidated damages to two lawyers for the Al-Haramain Islamic Foundation. U.S. District Judge Vaughn Walker had previously ruled that the government’s spying violated federal laws on domestic surveillance.
The foundation had claimed that the government used information intercepted from phone conversations between the nonprofit’s lawyers and an Al-Haramain director in Saudia Arabia to designate the group as a terrorist organization with ties to Osama bin Laden.
The government later used that information to freeze the Oregon-based group’s assets in 2004 and 2008 — actions the 9th Circuit later said violated the group’s civil rights.
In an earlier ruling, the federal appeals court had allowed the case to proceed, but remanded to Judge Walker for a ruling on whether the Foreign Intelligence Surveillance Act (FISA) trumps the state-secrets privilege.
Walker held that it does, and said the govern ment had implicitly waived sovereign immunity for damages under FISA’s civil liability provision. He awarded $20,400 each to lawyers Wendell Belew and Asim Ghafoor, plus more than $2.5 million in attorneys’ fees.
The 9th Circuit vacated that award Tuesday, finding that the government never waived immunity, explicitly or implicitly.
A FISA violation occurs when a “person intentionally … engages in electronic surveillance under color of law.”
The Islamic charity argued that a “person” also meant “employees and officers of the federal government,” but Judge Margaret McKeown rejected this interpretation.
“Congress can and did waive sovereign immunity with respect to violations for which it wished to render the United States liable,” she wrote. “It deliberately did not waive immunity with respect to the [FISA provision], and the district court erred by imputing an implied waiver.”
The 9th Circuit also dismissed the foundation’s “bare-bones allegations” against FBI Director Robert Mueller, saying the lawsuit against him “was nothing more than a sideshow, overshadowed by the core claims against the government.”
Though the ruling effectively ends the charity’s bid to hold the government responsible for its warrantless surveillance, the federal appeals court denounced the government’s implication that the foundation was somehow “game-playing” with its lawsuit.
“That their suit has ultimately failed does not in any way call into question the integrity with which they pursued it,” McKeown wrote.