Sadly, the Ninth Circuit Court of Appeals has reversed the decision in Al-Haramain, the only suit against the government’s Terrorist Surveillance Program that had prevailed. The reversal was based on the government’s claim that FISA’s civil remedies language did not trump sovereign immunity.
In their opinion, the court took special pains to respond to the government’s claims that the plaintiffs had engaged in ‘game-playing.’ It was a nice tribute to the plaintiffs’ attorneys and a gentle smackdown of the government’s counsel, but small consolation, indeed.
Given how Congress has gone with respect to FISA, I harbor no hope that Congress will remedy by this problem by amending FISA to provide stronger civil remedies for those whose rights may be infringed. After all, why hold the government truly accountable for warrantless surveillance, right?
Update: for a more detailed explanation of the case and ruling, see EFF”s post on the opinion and its implications.