Court Rejects Government's State Secrets Assertion in TSP Case

Judge Vaughn Walker (N.D. Cal.) today denied the government's motion for summary judgment based on its claim that the state secrets privilege prevented plaintiff al-Haramain Islamic Foundation from showing that the government's terrorist surveillance program (TSP) violated the Foreign Intelligence Surveillance Act (FISA).  (Thanks to Rebecca Beyer of the San Francisco Daily Journal for the tip.)  Judge Walker also granted the plaintiffs' motion for summary judgment and ruled the TSP program unlawful.

The case, Al-Haramain Islamic Foundation v. Obama, is the culmination of years of litigation at the district court and Ninth Circuit and incessant delay tactics and perpetual foot-dragging on the part of the government.  Among other things, the government made expansive arguments about the application of the state secrets privilege.  (I just posted my paper surveying the government's position on the state secrets privilege post 9/11 here.)  This latest ruling rejected yet two more of the government's expansive arguments on the privilege.

The plaintiffs originally filed their complaint in the case with a classified document that had been inadvertently disclosed by the Office of Foreign Assets Control as part of a production of unclassified documents related to Al-Haramain's designation as a "Specially Designated Global Terrorist" organization.  (The classified document showed that the plaintiffs were subject to surveillance.)  The government moved to dismiss the case, arguing that the very subject matter of the case was a state secret.  The Ninth Circuit rejected this expansive claim but also ruled more narrowly that the state secrets privilege protected the classified document from use in the case. 

The plaintiffs re-pleaded and included new and detailed factual claims supporting their FISA claim (but omitted the classified document, ruled protected by the state secrets privilege).  The government moved to dismiss again, this time arguing that the state secrets privilege foreclosed plaintiffs' attempt to establish their case without the classified document, and that the state secrets privilege overrides the FISA.  Both of these arguments are close cousins of the government's expansive argument that the very subject matter of the case was a state secret.

The court in its order today rejected both of these arguments.  As to foreclosure, the court ruled that nothing in the Ninth Circuit's ruling foreclosed the plaintiffs from establishing their FISA case through other evidence.  (This approach--allowing plaintiffs' suits to move forward, when possible, without privileged material--is the traditional approach to the evidentiary state secrets privilege since U.S. v. Reynolds, as I argue in my article above.)  As to override, the court held the government's position untenable: it would mean that the government could use the state secrets privilege at will to avoid FISA litigation; this was contrary to congressional intent in enacting FISA and contrary to the Ninth Circuit's interpretation of FISA in the earlier appeal.

In making these arguments, the government continued its efforts to expand the state secrets privilege into a constitutional, separation-of-powers principle (and not a mere common law privilege).  The effect of this position is exactly what Judge Walker wrote: the government could use the privilege anytime it wanted, without meaningful judicial check, to override lawsuits (like Al-Haramain's FISA suit) against it.  But the government's position, while argued in several post-9/11 cases, was accepted (so far) by only one circuit court--the Fourth Circuit in El-Masri.  The claim was rejected by a three-judge panel of the Ninth Circuit in Mohamed v. Jeppsen Dataplan, the extraordinary rendition case, but the government pressed this same expansive argument to the en banc Ninth Circuit.  No word yet on that case.

SDS