Monday, November 19, 2007
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Court: Wiretapping Suit Can Proceed, but Key Evidence Privileged
By STEVEN M. ELLIS, Staff Writer
The Ninth U.S. Circuit Court of Appeals gave mixed news Friday to the government in its efforts to use the state secrets doctrine to block a suit by an Islamic charity which claims it was illegally wiretapped under the government’s terrorist surveillance program.
A unanimous panel upheld a ruling by U.S. District Judge Garr M. King of the District of Oregon that the Al-Haramain Islamic Foundation could not use a “top secret” call log that was inadvertently provided to it by the U.S. Treasury Department because the document contained information regarding military intelligence activity and was protected under the common law state secrets privilege.
But the panel also affirmed King’s decision that the subject matter of the litigation—the program itself—was not a privileged state secret because President Bush and other administration officials publicly acknowledged its existence on multiple occasions.
Writing for the panel, Judge M. Margaret McKeown said:
“[T]he government’s many attempts to assuage citizens’ fears that they have not been surveilled now doom the government’s assertion that the very subject matter of this litigation, the existence of a warrantless surveillance program, is barred by the state secrets privilege.”
Case Distinguished
McKeown distinguished the panel’s decision from the Fourth Circuit’s recent holding in El-Masri v. United States (2007) 479 F.3d 296, where the Fourth Circuit cited the state secrets doctrine to block a suit by a man who claimed to have been detained, flown to Afghanistan, and interrogated and tortured by the CIA for several months.
McKeown said that, unlike the Fourth Circuit, the panel did not view the “subject matter” of a lawsuit as one and the same with the facts necessary to litigate the case.
As a result, the panel concluded, the program’s operational details were privileged but its existence was not, and the panel remanded the matter to the district court to determine whether the plaintiffs could proceed on a claim that warrantless surveillance of telephone conversations between its directors and lawyers violated the Foreign Intelligence Surveillance Act.
A Justice Department spokesman said the department was pleased with the decision. He characterized the panel as a win for the government’s position that release of information about the program would undermine its intelligence capabilities and compromise national security.
But the plaintiffs’ attorneys called the decision a defeat for the government. They noted that the government had not achieved its goal of completely blocking review of the program, and said that the panel’s discussion of the “common law” privilege was an important point lending support to their claim that FISA preempted the privilege.
Preemption Argument
Attorney Stephen Goldberg of Portland, Ore. told the MetNews that the opinion signaled to the district court that the privilege did not arise from the Constitution, and that the district court could therefore consider whether Congress intended to preempt the privilege when it enacted FISA.
The terrorist surveillance program was established by President Bush following the Sept. 11, 2001 terrorist attacks. Bush authorized the National Security Agency to conduct a warrantless communications surveillance program to intercept international communications into and out of the United States by persons alleged to have ties to Al-Qaeda and other terrorist networks.
The day after the New York Times revealed the program’s existence in 2005, Bush informed the country in a public radio address that he had authorized the program and the administration made a number of subsequent further disclosures, including the Justice Department’s 2006 release of a white paper confirming the program’s existence and its legal justification.
Al-Haramain, a Muslim charity based in Saudi Arabia whose activities included building mosques and maintaining various development and education programs in more than 50 countries, was identified in 1999 by the U.N. Security Council as an associate of Al-Qaeda.
Evidence Disclosed
The Treasury Department brought a civil proceeding to designate the group as “global terrorists,” but in 2004 it inadvertently provided the group with a call log stamped “top secret,” indicating that the group had been targeted for surveillance under the program. The charity’s lawyers subsequently turned copies of the document over to the FBI.
In arriving at its conclusion, the panel overturned a decision by the district court to allow the plaintiffs to introduce their memory as to the document’s contents as evidence for in camera review. McKeown said it was “a commendable effort to thread the needle,” but was contrary to U.S. Supreme Court precedent precluding the disclosure of sensitive information that could jeopardize national security.
“Such an approach countenances a back door around the privilege and would eviscerate the state secret itself,” she wrote.
On balance, plaintiffs’ attorneys were pleased with the outcome.
“We lost one, but we get to litigate the other,” attorney Jon B. Eisenberg of Oakland said. “If we get to litigate the other, I don’t care about a loss today.”
His partner, attorney William N. Hancock, agreed, calling the decision, “at best a draw” for the government. He said the plaintiffs would likely proceed under their FISA claim rather than appealing the application of the privilege to the call log, but predicted that the government would seek to delay the litigation as long as possible in order to allow the issue to become less sensitive once Bush leaves office in 2009.
The appeal had previously been consolidated with Hepting v. AT&T Corp., Nos. 06-17132, 06-17137, which also relates to alleged government electronic surveillance. However, the panel determined that the claimed facts and circumstances of each case were distinct, and ordered the clerk to sever the matters.
McKeown was joined in her opinion by Judges Harry Pregerson and Michael Daly Hawkins.
The case is Al-Haramain Islamic Foundation, Inc. v. Bush, No. 06-36083.
Copyright 2007, Metropolitan News Company