Federal appeals court rejects government bid
to dismiss warrantless surveillance lawsuit

Photo courtesy University Press

By Julia Cheever

November 16, 2007

A federal appeals court in San Francisco today kept alive a lawsuit filed against President Bush by a now-defunct Islamic charity in Oregon for alleged warrantless interception of its phone calls.

The 9th U.S. Circuit Court of Appeals rejected the government's argument that the lawsuit should be dismissed on the ground that any challenge to national security surveillance would endanger state secrets.

A three-judge panel court said that since late 2005, Bush and other officials have provided "a cascade of acknowledgements and information" about the Terrorist Surveillance Program, although the information may have been selective.

The court said the government therefore can't argue the lawsuit should automatically be dismissed.

Circuit Judge Margaret McKeown wrote, "The state secrets privilege does not bar the very subject matter of this action."

The panel said the Al-Haramain Islamic Foundation and two of its lawyers could pursue a claim that the alleged surveillance conflicted with provisions of the U.S. Foreign Intelligence Surveillance Act.

The court sent the case back to U.S. District Judge Vaughn Walker in San Francisco for further proceedings.

Walker has been assigned to handle about 45 domestic surveillance lawsuits originally filed in a number of courts around the country. Unlike the Al-Haramain lawsuit, most of the others were filed not against the government but against telecommunications companies for allegedly aiding the National Security Agency in warrantless spying.

At the same time, the panel said Al-Haramain and its attorneys couldn't use a key piece of evidence because that evidence was specifically a state secret related to national security.

The evidence, identified in the ruling only as the Sealed Document, is a top-secret log of intercepted phone calls that was accidentally given by government officials to the plaintiffs' lawyers in 2004.

After the disclosure was discovered, the FBI retrieved all copies of the document. But a federal judge in Oregon who was originally assigned to the case allowed the charity's attorneys to file confidential statements about their memories of the material.

McKeown wrote that all three judges on the appeals panel had looked at the document and agreed it should be kept secret. The panel said the attorneys couldn't present evidence about their memories of it because that would be a "back door" way around the state secrets doctrine.

As a result, the court said, the only remaining ground for the lawsuit is the claim that the alleged surveillance violated the FISA program for protecting national security and that the FISA law preempts the government's state secrets privilege.

The charity's lawyer, Jon Eisenberg of Oakland, said that part of the lawsuit is "alive and well."

"We intend to go back to Judge Walker's court and pursue that argument vigorously," Eisenberg said.

Justice Department spokesman Charles Miller said, "We are pleased with the court's decision."

Miller, referring to the court's conclusion on the secret document, said, "The 9th Circuit upheld the government's position that the release of this information would undermine the government's intelligence operations and compromise national security."

Meanwhile, the appeals court has not yet ruled on another key case that was argued on the same day as the Al-Haramain case in August.

In the other case, Tash Hepting of San Jose and three other Californians are suing AT&T Corp. for allegedly giving the National Security Agency telephone and Internet records of millions of Americans without a court warrant.

The government claims that case also implicates state secrets and is appealing Walker's refusal to dismiss the lawsuit. The court's eventual ruling is expected to determine whether any of the suits against telecommunications companies can proceed.

Cindy Cohn, legal director of the San Francisco-based Electronic Frontier Foundation, said she was cautiously optimistic that today's ruling means the appeals court will not dismiss the Hepting case.

"I'm very hopeful the court will find that the Hepting lawsuit is not covered by the blanket state secrets doctrine," she said. The foundation represents the plaintiffs in that lawsuit.

But Cohn said the circumstances of the two cases are different and the evidence is different as well. In the Hepting case, the evidence includes statements by former AT&T technician Mark Klein alleging that a fiber optic cable in San Francisco was used to send copies of customers' e-mails and Internet phone calls and traffic to the NSA.

Cohn said the government has conceded that evidence is not a protected state secret.

The Hepting lawsuit claims the alleged surveillance violated federal communications privacy laws, the Constitution and the FISA law.

American Civil Liberties Union attorney Ann Brick, who represents citizens suing Verizon Communications Inc., said, "The Bush administration's ever-increasing use of the state secrets privilege to thwart holding it accountable for its illegal conduct remains deeply troubling."

Brick contended the administration has used the same argument to seek to avoid judicial scrutiny of alleged torture and rendition programs.

She said, "The courts have an important role to play in all of these cases and it is very significant that the 9th Circuit sent the Al-Haramain case back to the district court for a determination of whether FISA trumps the state secrets privilege."

Photo courtesy Wired.com

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