One of the warrantless wiretapping cases left over from the bad old days of the Bush administration, bleeding into the Obama administration's Department of Justice, had its final ruling this week. Judge Vaughn Walker issued a final judgment, granting the plaintiff's attorneys their full fee of over $2.5 million, with limited damages to two plaintiffs in the now defunct al-Haramain organization.
Walker awarded two plaintiffs — attorneys for the Islamic group — $20,400 each in compensatory damages, based on the amount of time they were under surveillance. Al-Haramain was denied damages and attorneys fees because it's classified as a foreign power under FISA. Walker further denied all three plaintiffs' request for punitive damages of $183,600 each....
Jon Eisenberg, one of eight attorneys for the plaintiffs, said the damages awarded Asim Ghafoor and Wendell Belew are meaningful. "That's more than a slap on the wrist," said Eisenberg, of Oakland's Eisenberg & Hancock. "It's an acknowledgement that a wrong was done to them."
The denial of punitive damages, he added, will only help make the ruling more bulletproof if it's appealed.
On fees, the government had argued that plaintiffs' attorneys were entitled to a maximum of $606,116, saying they submitted inadequate documentation, overstaffed the case and billed for hours that were unproductive or unreasonable.
Walker disagreed, continuing with the harsh tone he has taken toward the government in the case. The feds "fiercely litigated this case from the beginning and has used every available tactic in defense," he wrote in his 47-page order, but plaintiffs ultimately were able to win despite the government's refusal to provide them with classified evidence.
"The difficulties faced and overcome by plaintiffs in this case add significantly to their 'level of success,'" he wrote. "Plaintiffs here stand alone among the dozens of plaintiffs in this consolidated litigation that had any success in pursuing claims against the government."
That's not the end of litigation over illegal surveillance, though this has been the most successful case thus far, with Walker steadfast in determining that the wiretap on the Oregon nonprofit was illegal and violated the Foreign Intelligence Surveillance Act (FISA). The government is likely to appeal this damages award, as it has appealed every decision along the way in this case. Al-Haramain could end up with the Jewel and Hepting cases still being considered. EFF's Kevin Bankston writes:
The system has indeed worked—for the two attorneys wiretapped in this case as part of the so-called "Terrorist Surveillance Program" that the government has admitted to. But, as EFF has alleged in its cases based on widespread news reports and whistleblower evidence, the full scope of the NSA's warrantless wiretapping—cryptically referred to as "Other Intelligence Activities" in the Inspectors General report on the broader President's Surveillance Program—implicates the privacy rights of millions of Americans, rights that EFF is still seeking to vindicate in its lawsuits on behalf of AT&T customers. Both the Jewel and Hepting cases are currently on appeal to the Ninth Circuit Court of Appeals and awaiting the scheduling of oral argument; depending on whether the government appeals yesterday's decision, the Al-Haramain case may soon be joining them.