One challenge to the NSA’s warrantless surveillance program has had a measure of success.
In March 2010, US District Court Judge Vaughn ruled in the case Al-Haramain v. Bush that a former Oregon charity, the Al-Haramain Islamic Foundation, had been subjected to illegal warrantless wiretapping by the National Security Agency. Unlike other cases challenging warrantless wiretapping by the NSA that were thrown out on “state secrets” grounds, US attorneys had themselves revealed “state secrets” by inadvertently turning over to Al-Haramain’s attorneys a classified document from the Office of Foreign Assets Control revealing that the charity was under illegal warrantless surveillance.
The judge later ordered the government to pay Al-Haramain $2.5 million in legal expenses and awarded $20,400 in damages to two Al-Haramain attorneys whose communications were monitored without a warrant in 2004. The charity itself remained closed, with its assets frozen.
In another warrantless surveillance case, Amnesty et. al. v. Clapper, the ACLU challenged the constitutionality of the FISA Amendments Act, which in 2008 gave the NSA the authority to monitor the international phone calls and e-mails of Americans who are not engaged in criminal activity. The suit was brought on behalf of attorneys and human rights, labor, legal and media organizations whose work requires them to engage in sensitive and sometimes privileged telephone and e-mail communications with colleagues, clients, journalistic sources, witnesses, experts, foreign government officials and victims of human rights abuses located outside the United States.
A federal district court dismissed the case in August 2009, ruling that the plaintiffs did not have the right to challenge the new surveillance law because they could not prove that their own communications had been monitored under it. But the Second Circuit Court of Appeals reversed that decision in March 2011, permitting the case to go ahead.