Obama

This case, which comes before us a second time, is one of many related to the United States government’s Terrorist Surveillance Program, a program that “intercepted international communications into and out of the United States of persons alleged to have ties to A1 Qaeda and other terrorist networks.” Al-Haramain Islamic Found. v. Bush (“Al-Haramain I”), 507 F.3d 1190, 1192 (9th Cir.2007). In the previous appeal, we determined that “the state secrets privilege d[id] not bar the very subject matter of th[e] action” and *848 remanded to the district court to consider, among other issues, whether the Foreign Intelligence Surveillance Act (FISA) preempts the state secrets privilege. Id. at 1193 . On remand, the district court held that FISA preempts or displaces the state secrets privilege, that the government implicitly waived sovereign immunity for damages under FISA’s civil liability provision, 50 U.S.C. § 1810 , and that two of the Al-Haramain plaintiffs were entitled to statutory damages and attorney’s fees.

The threshold issue in this appeal is whether the district court erred in predicating the United States’ liability for money damages on an implied waiver of…