Another court backs Bush on secrets

Times Staff Writer

In rejecting a key element of a legal challenge to the government’s warrantless wiretapping program, federal appellate judges on Friday demonstrated once again the willingness of U.S. courts to give the Bush administration considerable latitude in handling the war on terror.

The U.S. 9th Circuit Court of Appeals in San Francisco, by a 3-0 vote, barred an Islamic charity from using a confidential government document to prove that it had been illegally spied upon, agreeing with the administration that disclosure would reveal “state secrets.”

The lawsuit, filed by Al-Haramain Islamic Foundation and two of its attorneys, challenged the National Security Agency’s spying endeavor, the Terrorist Surveillance Program, launched after the Sept. 11, 2001, terrorist attacks. The U.N. Security Council has declared that Al-Haramain, which operates in more than 50 countries, belongs to or is associated with Al Qaeda.

The suit was one of 50 legal challenges brought across the country after the program’s existence was revealed in the New York Times.


Other courts have shown similar deference to the Bush administration on the state secrets privilege, which permits the government to bar disclosure in court of information if “there is a reasonable danger” it would affect national security.

But the ruling in this case was particularly striking because it came from a panel of three liberal jurists, all appointed by Democratic presidents.

Moreover, the charity, unlike other plaintiffs, says it has evidence of surveillance -- a call log from the National Security Agency that the government inadvertently turned over in another proceeding.

In the ruling, Judge M. Margaret McKeown wrote that the judges accepted “the need to defer to the executive on matters of foreign and national security and surely cannot legitimately find ourselves second-guessing the executive in this arena.”


Erwin Chemerinsky, a liberal constitutional law professor at Duke University law school, said the court showed “how much deference even a liberal panel of judges is willing to give the executive branch in situations like this, and I find that very troubling.”

Doug Kmiec, a conservative constitutional law professor at Pepperdine law school, said “the opinion is consistent with” a ruling by the federal appeals court in Cincinnati earlier this year striking down a challenge to the surveillance filed by the American Civil Liberties Union.

He said the dual rulings indicated that “federal courts recognize that the essential aspects of the Terrorist Surveillance Program both remain secret and are important to preserve as such.”

The court’s ruling was not an absolute victory for the government. McKeown rejected the Justice Department’s argument that “the very subject matter of the litigation is a state secret.”


That finding could prove important in numerous other cases in which the government contends that even considering legal challenges to warrantless wiretapping would endanger national security.

In addition, the 9th Circuit panel sent the case back to a lower court to consider another issue: whether the Foreign Intelligence Surveillance Act, which requires approval by a special court for domestic surveillance, preempts the state secrets privilege. McKeown said that issue “remains central to Al-Haramain’s ability to proceed with this lawsuit.”

Georgetown University constitutional law professor David Cole said he thought Friday’s ruling showed partial victories for both sides.

Indeed, lawyers for the government and for the charity said they were happy with the outcome.


“The 9th Circuit upheld the government’s position that release of this information would undermine the government’s intelligence capabilities and compromise national security,” the Justice Department said.

Oakland attorney Jon Eisenberg, who argued for Al-Haramain before the 9th Circuit, said: “The government wants this case dead and gone. It is not. We are alive and kicking.”

Eisenberg expressed optimism that his client would prevail under the Foreign Intelligence Surveillance Act, a statute enacted in the aftermath of revelations of illegal spying on civil rights and antiwar activists in the 1960s and ‘70s.

“That provision would be meaningless if the government could evade any such lawsuit merely by evoking the state secrets privilege,” Eisenberg said.


In support of her opinion, McKeown detailed statements by government officials -- including President Bush, then-Atty. Gen. Alberto Gonzales and Gen. General Michael V. Hayden, principal deputy director for national intelligence -- acknowledging the existence of the Terrorist Surveillance Program and extolling its importance.

“In light of extensive government disclosures about the TSP, the government is hard-pressed to sustain its claim that the very subject matter of this litigation is a state secret,” wrote McKeown, an appointee of President Clinton. “Unlike a truly secret or ‘black box’ program that remains in the shadows of public knowledge, the government has moved affirmatively to engage in public discourse about the TSP.”

Nonetheless, after privately reviewing the secret document, McKeown said she and her colleagues Michael Daly Hawkins, another Clinton appointee, and Harry Pregerson, a Carter appointee, agreed it was protected by the state secrets privilege.

“Detailed statements underscore that disclosure of information concerning the Sealed Document and the means, sources and methods of intelligence gathering in this context of this case would undermine the government’s intelligence capabilities and compromise national security,” she said.


The state secrets privilege was first utilized successfully by the government in a case shortly after the Civil War.

The leading case in the area, U.S. vs. Reynolds, was issued by the Supreme Court in 1953 to block a lawsuit after the crash of a B-29 bomber.

Three widows of crewmen sued and sought the official accident reports. The Air Force said the reports could not be revealed because the bomber was on a secret test mission.

(When the reports were declassified in 2000, they revealed that the aircraft was in poor condition, evidence that might have helped the widows’ suit.)


The Bush administration has evoked the state secrets privilege numerous times in recent years. In most instances, courts have accepted the word of government lawyers, often with a fairly cursory review, according to George Washington University law professor Jonathan Turley, who, like Cole, has challenged the privilege in court.

McKeown took pains to say that the 9th Circuit had carefully scrutinized the government’s assertions.

She said the judges had taken “very seriously our obligation to review the documents with a very careful, indeed a skeptical eye, and not to accept at face value the government’s claim or justification of privilege.”

But she said the panel could go no further than what already has been publicly disclosed that “the Sealed Document has something to do with intelligence activities.”


When the court heard the Al-Haramain case in August, it also entertained arguments in a related case, Hepting vs. AT&T; Corp. In that case, lawyers representing millions of AT&T; customers are seeking damages from the telecommunications giant for allegedly sharing their private records with the National Security Agency as part of the surveillance program.

On Friday, the 9th Circuit panel issued a brief order saying that the AT&T; case had been severed from the Al-Haramain matter. A decision is expected in the next several months, although there is no deadline.