[NYTr] 9th Circuit upholds state secrets privilege

[All the News That Doesn't Fit]

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9th Circuit upholds state secrets privilege

World Socialist Web Site - 19 November 2007
http://www.wsws.org/articles/2007/nov2007/nsag-19n.shtml


APPEALS COURT PANEL BARS KEY EVIDENCE FROM LAWSUIT AGAINST NSA SPYING

See 9th Circuit Opinion in AL-HARAMAIN ISLAMIC v BUSH 
http://caselaw.findlaw.com/data2/circs/9th/0636083p.pdf

A  three-judge panel the US Ninth Circuit Court of Appeals, consisting 
entirely  of  liberals  appointed  by  Democratic presidents, issued a 
ruling  Friday  excluding  evidence  of  illegal  wiretapping  by  the 
National  Security  Agency  (NSA)  against  a  Muslim charity based in 
Oregon.

The ruling confirms a sweeping "state secrets" power for the executive 
branch,  allowing  the  president  and  the  intelligence  agencies to 
torpedo  any  legal  action against an abuse of power by claiming that
the court process would result in damage to national security.

The  decision arises from a lawsuit brought by the Al-Haramain Islamic 
Foundation   against   the  Bush  administration,  charging  that  the 
"Terrorist  Surveillance  Program,"  the  massive  spying  on domestic 
communications  by  the  NSA,  violates  both  federal  law and the US 
Constitution,   including  the  First,  Fourth  and  Sixth  amendments 
(providing  freedom  of speech, freedom from warrantless searches, and
the separation  of  powers), as well as the International Covenant on
Civil and Political Rights.

Al-Haramain alleged that the NSA engaged in electronic surveillance of
the charity's   private   telephone,  email,  and  other  electronic 
communications  without  probable  cause,  warrants,  or  other  prior 
authorization, as required under the Foreign Intelligence Surveillance
Act (FISA).

The Bush administration admitted the existence of the program in early 
2006,  a few months after it was first revealed by the New York Times.
The NSA   engaged   in  warrantless  interception  of  international 
communications into and out of the United States of persons it claimed
to have connections to Al Qaeda or other terrorist organizations.

This  is  one  of  50  cases  filed across the US, challenging the NSA 
program,  but  it  is  unique  because the Al-Haramain charity, unlike 
other  plaintiffs,  had  specific  evidence that it had been spied on. 
During  a  2004  attempt  by  the  government  to freeze the charity's 
assets,  the  government inadvertently gave Al-Haramain a file showing 
just  that.  When  the charity filed its lawsuit it included a copy of 
this file in order to substantiate its claim.

The  government  then  sought  to dismiss the case. It argued that the 
subject matter of the lawsuit was so secret it could not be challenged
in court. It asserted that federal attorneys had released the file by 
accident,  and  that  the  documents  could not be used to support the 
charity's  allegation  that  it  had  been  spied  on because the file 
contained  state  secrets.  The  government  argued  that without that 
secret  evidence  Al-Haramain  did  not have a sufficient stake in the 
controversy  and  thus  had no "standing" to sue, because it could not 
prove it had in fact been spied on.

The  lower  district  court  judge  ruled  that  the  existence of the 
surveillance  program  was  not  a  secret because President Bush, his 
Attorney  General  Alberto  Gonzalez  and NSA head Michael Hayden, now 
Director  of  National  Intelligence,  had discussed it extensively in 
public  following  the  Times' disclosure of the program in late 2005.
The district  court  agreed  that the government had the privilege to
keep the  file secret because it contained means, sources and methods
of intelligence gathering.

But  the  lower  court  found  there  was  "no  reasonable danger that 
national  security  would be harmed" if the charity's officers who had 
seen  the  file were permitted to testify that the file indicated they
had been  wiretapped, as long as they did not disclose anything about 
intelligence-gathering  capabilities  revealed  in  the file. Thus the 
court refused to dismiss the suit.

The  court  of appeals reversed the lower court decision in an opinion 
written  by  Judge  Margaret  McKeown,  appointed  by  President  Bill 
Clinton,  and  joined  in  by  Judges  Harry  Pregerson,  appointed by 
President  Jimmy  Carter,  and Michael Daly Hawkins, also appointed by 
Clinton.  These three Democratic appointees are also widely considered 
"liberal" judges, particularly Pregerson, who is routinely attacked in 
right-wing  legal  and  political  circles  as one of the most liberal 
judges on the frequently reversed "activist" Ninth Circuit court.

The  appellate panel ruled that the case was determined by application
of the  state  secrets  privilege,  merely  a "common law" privilege, 
shielding   confidential  communications  from  discovery  or  use  as 
evidence, which was developed, like the attorney-client privilege. The 
privilege  permits  the government to bar disclosure of information if 
"there  is  a reasonable danger" that disclosure will "expose military 
matters  which,  in  the  interest of national security, should not be 
divulged."

The  decision  looked for guidance to two prior US Supreme Court cases
in particular.  In  1875  the Supreme Court threw out a case that had
sought money  damages  for  breach  of  an espionage contract between
President Lincoln  and a secret agent who was allegedly dispatched to
spy  on enemy troops. The Court explained in a very short opinion that
"as  a general principle" public policy forbids the maintenance of any
suit,  the  trial of which would inevitably lead to the disclosure of
matters  which  the law itself regards as confidential. It then barred
suit  regarding  the contract,  as  the  secrecy which such contracts
impose  precludes  any action for their enforcement, noting that "the
existence  of  a  contract of  that  kind  is itself a fact not to be
disclosed."

In 1953 the Supreme Court decided that the widows of Air Force crewmen 
killed  in  a plane crash could not obtain release of accident reports
to support their negligence suit because the bomber the airmen manned
was  on a  secret  test  mission  and  details  of  secret electronic
equipment might be revealed in the reports.

The  Ninth  Circuit  decision  in the Al-Haramain case agreed with the 
lower  court judge in rejecting the government's argument that the NSA 
spying  program by its very nature could not be the subject of a court 
suit, because of the widespread public disclosures of its existence of
the program by Bush and others.

But  this  reasoning necessarily implies that had the program not been 
revealed  by  the  government  publicly, it could not be challenged in 
court  because  it  would  have  remained  a  state  secret. That is a 
perversion  of  the  prior Supreme Court cases the court relies on. In 
neither  case were the plaintiffs alleging that the government program 
involved--an  espionage  contract  and  a  bombing  test mission--were 
intrinsically illegal or unconstitutional.

The  Al-Haramain  case, however, charges that the surveillance program 
itself  amounts  to a wholesale violation of constitutional rights and 
federal   statutes   restricting  warrantless  spying.  Where  in  the 
constitution,  or  federal  law  for  that  matter,  does  it say that 
unconstitutional government action can be protected under the guise of 
national security? The court does not say.

Thus,  the court in its decision, necessarily accepts the government's 
framing  of  the case, the very government that committed the wrong in 
question.  The logic of this approach is that any police-state program
is unchallengeable as long as the government keeps it secret from the
public.

After  reviewing  the  documents  in question behind closed doors, the 
Ninth  Circuit panel also agreed with the district judge that the file
in question merited application of the state secrets privilege. While 
claiming  not to take the Bush administration claim at face value, the 
three judges nonetheless accepted, "the need to defer to the Executive
on matters  of foreign policy and national security and surely cannot 
legitimately  find  ourselves  second-guessing  the  Executive in this 
arena."

The  Ninth  Circuit disagreed with the eminently reasonable conclusion
of the lower court that the charity's officers could testify as to the
spying on Al-Haramain based on their having read the file, as long as
they  were not  permitted  to  testify  about  intelligence means and
personnel.  The lower court judge's approach was entirely in line with
the  Supreme Court's decision in the 1953 airmen case, where the case
was  permitted to  proceed  based on testimony of other crew members,
without revealing electronic secrets.

The  three-judge panel threw out the case as far as its constitutional 
claims,  but  ordered the district court to reconsider the claim under 
FISA. But the process is now a classic Catch 22, since Al-Haramain has 
been  denied  the  evidence--the NSA document now suppressed under the 
"state  secrets" privilege--to satisfy FISA's requirement that only an 
"aggrieved  person"  may  have  standing  to bring a suit to determine 
whether surveillance "was lawfully authorized and conducted."

This   Appeals  Court  judges'  legal  opinion  is  full  of  language 
purporting  to  express  concern about the illegal wiretapping and the 
court's duties to scrutinize the government's conduct. This is so much 
breast-beating,  like  similar  rhetoric  from  Democratic  members of 
Congress  over  the  last  few  years  over  the Bush administration's 
wholesale  gutting  of  constitutional  rights,  the  rule  of law and 
separation of powers.

This  Ninth  Circuit  decision  in  Al-Haramain  is  yet another clear 
example  of  this  moribund  character  of American liberalism and its 
organic inability to protect democratic rights.