Even if you can prove that you’ve been illegally wiretapped by the government, in violation of the federal Foreign Intelligence Surveillance Act, you can’t seek restitution unless the government decides to try to use the illegally‐acquired evidence against you. That’s the upshot of the Ninth Circuit’s ruling last week in the case of Al Haramain v. Obama, which invoked “sovereign immunity” to overturn an award of damages to an Islamic charity that discovered (thanks to an error by the government) that it had been targeted in the warrantless wiretapping program launched by President Bush.
As a narrow matter of statutory construction, the decision may well be correct—I leave that question to colleagues with a firmer grasp of “sovereign immunity” jurisprudence. But it ought to be disturbing on policy grounds for a couple of reasons.