Legal Commentary

Illegally Wiretapped Lawyers Submit Bill for $612k in Damages

By Jeralyn

Two American lawyers and an Islamic charity have submitted their bill for damages following a federal court ruling the Bush Administration subjected them and Al-Haramain Islamic Foundation to illegal wiretapping. The tab as of now (not including attorneys' fees and costs): $612,000.

Judge Vaughn Walker ruled on March 31 (pdf) they were victims of Bush's NSA warrantless electronic surveillance program in violation of FISA, had directed them to submit a statement with their damages. On Friday, they filed this pleading (pdf).

The lawyers and the charity were illegally wiretapped for 204 days. Their bill reflects actual damages at the rate of $100 per day for each day of violation, pursuant to 50 U.S.C. § 1810(a). In addition, there are punitive damages of of $183,600 for each of the three plaintiffs pursuant to 50 U.S.C. § 1810(b). [More...]

In addition, counsel for the plaintiffs will receive reasonable attorney’s fees and other investigation and litigation costs pursuant to 50 U.S.C. § 1810©.

Who is liable?

BARACK H. OBAMA, President of the United States; NATIONAL SECURITY AGENCY and KEITH B. ALEXANDER, its Director, in his official capacity; OFFICE OF FOREIGN ASSETS CONTROL, an office of the United States Treasury, and ADAM J. SZUBIN, its Director, in his official capacity; and FEDERAL BUREAU OF INVESTIGATION and ROBERT S. MUELLER III, its Director, in his official capacity.

The document specifies that Mueller is not liable in his individual capacity. Since all are liable in their official capacity only, this means we pay the bill.

The order may also provide that the Government cannot use the information it illegally obtained, or any evidence derived from it, in any government proceeding. That's more likely than the money award to discourage the Government from continuing their misconduct. It also shows how important the exclusionary rule is.

As further equitable relief, and pursuant to the Court’s authority under 50 U.S.C. § 1806(g) to order suppression of evidence obtained in violation of FISA, it is adjudged and ordered that information obtained by means of plaintiffs’ unlawful electronic surveillance shall not be used by the United States government, either directly or derivatively, in any administrative, civil, or criminal proceeding in which the United States is a party.

Upon the final resolution of all such proceedings potentially involving such information, all files and records containing such information shall be purged and destroyed, except to the extent that defendants may have an existing legal obligation to preserve exculpatory evidence.

Who was it that said "The criminal is to go free because the constable has blundered?" It was Justice Cardozo in 1926, then chief judge of the New York Court of Appeals, in People v. Defore, 150 N.E. 585, 587 (N.Y. 1926). (He was not a fan of the blanket policy, at least not in that case, but in Mapp v. Ohio in 1961 the Supreme Court said such reasoning had been "largely vitiated" by later decisions.)

Full post as published by TalkLeft on April 18, 2010 (boomark / email).