From the Los Angeles Times

Court rejects challenge to wiretap program

The Bush administration's warrantless spy effort is protected by the 'state secrets' privilege, federal judges rule.

By Henry Weinstein
Los Angeles Times Staff Writer

10:45 AM PST, November 16, 2007

A federal appeals court in San Francisco today handed a major victory to the Bush administration, ruling that a lawsuit challenging the government's warrantless wiretapping program could not go forward because of the "state secrets" privilege.

In a 3-0 decision, the U.S. 9th Circuit Court of Appeals sided with the government, which had argued that allowing an Islamic charity's claims that it was illegally spied upon to go forward would threaten national security.

In the opinion, Judge M. Margaret McKeown flatly rejected the government's argument that "the very subject matter of the litigation is a state secret."

However, after privately reviewing sealed information from the government, McKeown said on behalf of the three-judge panel, "We acknowledge 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."

The victory was not absolute. The court sent the case back to a lower court to consider whether the Foreign Intelligence Surveillance Act, which requires the government to seek warrants for anti-terrorist wiretaps from a special court, preempts the state secrets privilege. The proceedings on that issue could take months.

But coming from three judges, all appointed by Democratic presidents, in one of the most liberal federal circuits in the country, the ruling demonstrates a reluctance by the courts to intervene in President Bush's handling of the war on terrorism.

The lawsuit, filed by the Al-Haramain Islamic Foundation and two of its attorneys, challenged the National Security Agency's spying endeavor, called the Terrorist Surveillance Program, which was launched after the Sept. 11, 2001, terrorist attacks.

It was one of 50 legal challenges brought across the country after the surveillance program's existence was revealed in a December 2005 story in the New York Times.

Earlier this year, a federal appeals court in Cincinnati dismissed a similar challenge filed by the American Civil Liberties Union. The court ruled that the plaintiffs, including lawyers, journalists and scholars, had no standing because they could not prove they had been injured by the program.

But the Al-Haramain case had a distinct element.

In 2004, government officials from the Office of Foreign Asset Control, during proceedings seeking to temporarily freeze the Islamic's charity's assets, inadvertently gave Al-Haramain lawyers a "top secret" document. Al-Haramain, which operates in more than 50 countries, has been identified by the United Nations Security Council as belonging to or associated with Al Qaeda.

When government officials discovered their mistake, they demanded that Al-Haramain and others who had obtained copies return the document.

In its suit early last year, Al-Haramain and two of its attorneys contended that the secret document was a National Security Agency call log documenting surveillance of the organization.

The organization asserted that the president and other executive branch officials violated the Foreign Intelligence Surveillance Act, various provisions of the U.S. Constitution and international law. The government countered that the suit was barred by the state secrets privilege, a legal rule codified during the Cold War to quash legal action that could reveal military secrets.