Federal court affirms wiretapping program

Islamic group's legal challenge a security threat, government said

November 17, 2007|By Henry Weinstein | Henry Weinstein,LOS ANGELES TIMES

A federal appeals court in San Francisco yesterday 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 9th U.S. 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, pre-empts 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 United States after the surveillance program's existence was revealed in a December 2005 story in The New York Times.

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 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 U.N. Security Council as belonging to or being associated with al-Qaida.

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.

The appeals court also split off from the Haramain case a separate group of 40 lawsuits brought against AT&T, Verizon and other telecommunications companies over the NSA program. The appeals court had heard oral arguments on the two sets of cases together, but it said yesterday that the facts in the cases were "distinct." The court was expected to issue a separate ruling later on the AT&T case.

Lawyers for the Electronic Frontier Foundation, one of the private groups leading the lawsuit against the telecommunications companies, said they were encouraged by yesterday's ruling. For the appeals court to acknowledge that the existence of the NSA program should not be considered a state secret is "a great victory," said Kevin Bankston, a staff lawyer for the electronic privacy group.

Congress, at the urging of the White House, is debating whether to give retroactive immunity to phone carriers that participated in the NSA program. If immunity were granted, it would damage and perhaps kill the lawsuits pending against the companies. That prospect, Bankston said, is "a clear and present danger to the litigation, but that won't stop us from continuing to press our rights in court."

Henry Weinstein writes for the Los Angeles Times. The New York Times contributed to this article.

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