Although U.S. District Judge Vaughn Walker had called it “unlawful surveillance,” (.pdf) the judge went soft on the government because the authorities, he said, believed they were protecting the country in the aftermath of the worst terrorist attack on U.S. soil.

The San Francisco judge on Tuesday did not declare the administration’s so-called Terror Surveillance Program unconstitutional, and at the same time declined to issue punitive damages to punish the government for wiretapping in the country without warrants. Instead, the two spied-upon lawyers for the now-defunct Al-Haramain Islamic Foundation charity were granted $100 a day for each of the 204 days their telephone calls were wiretapped beginning February 2004, an amount they sought. In addition, they requested about $200,000 each in punitive damages, in addition to the same amount to the charity.

“The president and other senior executive branch officials responsible for national security necessarily bear some risk that their actions may one day be held to be unlawful,” Walker wrote Tuesday. “They must balance this risk against the harm that may come to the nation if they fail to act. While the court has the constitutional duty to apply the law in cases before it and hold violators accountable, it need not mete out punitive measures on officials for perceived ‘recklessness’ in dealing with a serious, proven threat to the national security.” (.pdf)

Walker ruled the record showed the government had reason to believe Al-Haramain supported acts of terrorism and that “critical intelligence was obtained monitoring Al-Haramain.” Walker added that Al-Haramain, designated by the government as a terror organization, was involved in planning and financing terrorist attacks against the United States’ embassies in Kenya and Tanzania.

Tuesday’s award was based on Walker’s decision that went against the government in March. It was the first ruling addressing how Bush’s once-secret NSA spy program, adopted in the wake of the terror attacks, was carried out against American citizens. Other lawsuits considered the program’s overall constitutionality — absent any evidence of specific eavesdropping — and were dismissed.

The government in 2004 was intercepting the telephone communications of Al-Haramain lawyers Wendell Belew and Asim Ghafoor, who worked for an Oregon-based branch of the charity. The plaintiffs learned of the eavesdropping after the government erroneously sent them records. Both the Bush and the Obama administrations declared those records state secrets, so the documents were removed from the case.

Walker allowed the case to proceed, based on other evidence of eavesdropping.

Under Bush’s Terrorist Surveillance Program, which The New York Times disclosed in December 2005, the NSA was eavesdropping on Americans’ telephone calls without warrants if the government believed the person on the other line was overseas and associated with terrorism. Congress, with the vote of President Barack Obama — who was a U.S. senator from Illinois at the time — subsequently authorized such warrantless spying in the summer of 2008.

The legislation also provided the nation’s telecommunication companies immunity from lawsuits accusing them of being complicit with the Bush administration in illegal wiretapping.

The lawyers representing Belew and Ghafoor said they worked a combined 5,400-plus hours on the case, which during its 4-year-life had a tortured procedural history of being bounced from Oregon federal court to San Francisco federal court, to an appeals court and back to Judge Walker. They were granted about $2.5 million based on an hourly rate of roughly between $300 and $500 hourly according to generally accepted billing practices.

See Also:

• Court Says Bush Illegally Wiretapped Two Americans
• Thoughts of Storm Troopers Filling Spy Case
• Secret Spying Showdown Hits Federal Appeals Court Wednesday
• Feds Urge Dismissal of High-Profile Spy Case
• Obama Stands Behind ‘State Secrets’ in Spy Case
• Analysis: Some Secret Documents Are Too Secret

Authors: David Kravets

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