Ninth Circuit to hear argument “state secrets privilege” cases on Wednesday

On Wednesday August 15, 2007 the U.S. Court of Appeals for the Ninth Circuit will hear oral argument in two cases which could ultimately decide whether, and to what extent, the Bush Administration can use the common law “military and state secrets privilege” to cover up evidence of its own illegal electronic surveillance activities.

In Hepting v. AT&T Corp. (PDF, 72 pages), the plaintiffs filed a class action lawsuit against AT&T alleging that the phone company collaborated with the National Security Agency in an illegal warrantless surveillance program. The plaintiffs sought injunctive relief, statutory damages, punitive damages and declaratory relief on causes of action brought under the First and Fourth Amendments, the Foreign Intelligence Surveillance Act of 1978 (“FISA”), the Electronic Communications Privacy Act of 1986 (“ECPA”), the Communications Act of 1934, the Stored Communications Act as amended by the USA PATRIOT Act, and California’s deceptive trade practices act.

The plaintiffs filed suit in February 2006. The United States filed a motion to intervene in May 2006 in which it argued that the whole lawsuit should be dismissed outright. Any release of information regarding the surveillance program is prohibited by a common law doctrine called the military and state secrets privilege. Without that information, the government contended, there is no factual basis for a lawsuit and the case must be dismissed.

AT&T filed its own motion to dismiss on qualified immunity grounds. The phone company basically claims that, hey, whatever we did — if in fact we did anything — we did because the government asked us to.

In an incredibly detailed and meticulous opinion, Judge Vaughn Walker of the U.S. District Court for the Northern District of California denied both motions to dismiss. The judge thoroughly bitch-slapped AT&T, writing that “AT&T cannot seriously contend that a reasonable entity in its position could have believed that the alleged domestic dragnet was legal.” No qualified immunity for you, buddeh.

Most of the opinion was devoted to analysis of the government’s state secrets privilege claim. The judge detailed the history of the privilege from Aaron Burr’s trial for treason to date. The government claimed that the privilege mandated dismissal for three reasons:

(1) the very subject matter of this case is a state secret; (2) plaintiffs cannot make a prima facie case for their claims without classified evidence and (3) the privilege effectively deprives AT&T of information necessary to raise valid defenses.

The judge left open the possibility of a privilege-based dismissal in the future, but concluded that “[t]he compromise between liberty and security remains a difficult one. But dismissing this case at the outset would sacrifice liberty for no apparent enhancement of security.” Given the importance of the issues, the judge certified his order for immediate appeal per 28 U.S.C. 1292(b).

Anything you’d ever want to know about Hepting is available here courtesy of the Electronic Frontier Foundation.

Incidentally, cases like this are the reason Bush is demanding that Congress revise FISA yet AGAIN to afford immunity to private companies who role over like good little lap doggies and turn over tons of private communications immediately upon the government’s request.

The second case is Al-Haramain Islamic Foundation, Inc. v. Bush (PDF, 33 pages). This one involves an Islamic charitable foundation that the government alleged was funneling money to terrorist groups. In 2004 the Office of Foreign Assets Control (“OFAC”) froze the foundation’s assets during the investigation. The foundation’s American lawyers asked to see the evidence the government had against their client.

In what’s undoubtedly the biggest “Oops!” moment in the history of the administration’s warrantless surveillance program, OFAC produces a call log stamped “Top Secret” on every page. It appears that the document is record of phone calls from the foundation to its lawyers in the U.S. The lawyers didn’t actually know what they had until the New York Times broke the warrantless wiretapping program story in December 2005.

In the meantime, OFAC realized what they’d done and sent the FBI to collect the document, which one of the foundation’s lawyers had copied and given to other lawyers involved in the case as well as one of the foundation’s directors. The lawyers turned over their copies, but the FBI never came calling on the director.

The foundation and two of its lawyers filed suit in the U.S. District Court for the District of Oregon against the president, OFAC, the FBI, the National Security Agency and the defendant agencies’ directors. The plaintiffs asserted that the defendants violated FISA, the First, Fourth and Sixth Amendments, and a treaty called the International Convention for the Suppression of Financing of Terrorism.

The court ordered the plaintiffs and their attorneys to turn over all copies of the document. According to USA Today, the document is now stored “in a bombproof safe in Washington and viewed only by prosecutors with top secret security clearances and a few select federal judges.” However, the court’s opinion noted that the document is in something called the Secure Compartmentalized Information Facility at the FBI office in Portland, Oregon.

As always, the government sought dismissal on state secret privilege grounds. Judge Garr King denied the motion. In an often frenetic opinion, the judge ruled that the plaintiffs could not have any further access to the inadvertently disclosed document — at least for now — but may submit affidavits in camera regarding their recollection of the document’s contents for the purposes of “support[ing] their standing in this case and to make a prima facie case.”

The judge punted on some interesting issues, particularly the plaintiff’s argument that the private remedy provisions of FISA supersede the common law state secrets privilege and the government’s counterargument that the privilege is constitutionally based rather than a mere common law doctrine.

According to the Ninth Circuit’s calendar, oral arguments will be held on August 15 at 2:00 p.m. PDT at the Court’s San Francisco location. The panel consists of Judges Harry Pregerson (Carter appointee; well into his dotage, but liberal and a big believer in open government), Michael Hawkins (Clinton appointee; don’t know a damn thing about his record), and Margaret McKeown (Clinton appointee, arguably one of the ten smartest people in the federal judiciary).

About fifty similar lawsuits in California-based federal courts are on hold pending the outcome of this appeal.

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  • […] More on Wednesday’s Ninth Circuit “State Secrets” Cases The Christian Science Monitor has this writeup on Al Haramain Islamic Foundation, Inc. v. Bush, one of the state secrets privilege cases scheduled for argument before the Ninth Circuit on Wednesday, 8/15. SCD’s prior coverage is available here. […]

  • […] In news that actually means something in the grand scheme of things, the U.S. House of Representatives overwhelmingly passed a “compromise” bill that not only expands the federal government’s power to spy on “terrorism” suspects but also retroactively immunizes telecommunications companies from civil liability for their flagrant violations of the Foreign Intelligence Surveillance Act, the Electronic Communications Privacy Act of 1986 , the Communications Act of 1934, the Stored Communications Act as amended by the USA PATRIOT Act, etc., etc. by rolling over and giving protected information to the Bush Administration on request. The new legislation, if it passes the Senate, will moot a number of “state secrets privilege” cases currently pending in federal courts, two of which were discussed here. […]

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