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“Roadblocks to Justice: How Courts Have Evaded Ruling on the Legality of the ‘War on Terror’”
William H. Gates Hall
6:30 PM - 8:30 PM
In 2006, a challenge to the NSA warrantless surveillance program was filed by an Islamic charity in southern Oregon, the Al Haramain Islamic Foundation. A ruling by U.S. District Judge Vaughn Walker holding the government liable, and awarding over $2.5 million in damages and attorney fees, was ultimately overturned by the Ninth Circuit Court of Appeals, finding that the government was immune from suit under the Foreign Intelligence Surveillance Act (FISA). Procedural defenses – state secrets privilege, sovereign immunity, qualified immunity, lack of standing – have repeatedly been used to insulate the government from suits challenging some of the government’s most egregious programs from warrantless surveillance to rendition to the use of drones to detentions at Guantanamo Bay. What viable strategies can be used to allow challenges to such programs to proceed?