Case o' The Week: Ninth Bows to State Secrets Privilege (even though Feds blew disclosure), Al-Haramain

A slow week for criminal opinions allows a look at an interesting new case of national importance: Al-Haramain Islamic Foundation, Inc. v. Bush, __ F.3d __, 2007 WL 3407182 (9th Cir. Nov. 16, 2007), decision available here. In Al-Haramain, a very good panel of Hawkins, Pregerson and McKeown (pictured during argument, above) still defers to the government, and uphold the government’s reliance on the “state secrets” privilege. Turns out this privilege applies even though the government had actually disclosed the contested TOP SECRET document to the plaintiff-“terrorist organization” (another reassuring example of the the feds' competence).

Players: Decision by Judge Margaret McKeown.

Facts: After 9/11, Bush authorized warrantless monitoring of international calls in and out of the U.S., that involved suspected Al Qaeda associates. 2007 WL 3407182, *1. The N.Y. Times broke this story in 2005, and there followed a host of voluntary “reassurances” by the Bush administration about the program. Id.

Plaintiff Al-Haramain Foundation is a Muslim charity active in more than fifty countries. Id. at *3. It has also been labeled a “Specially Designated Global Terrorist” by Department of the Treasury, and the U.N. Security Counsel has identified it as an entity belonging to or associated with Al Qaeda. Id. During the “Global Terrorist” designation process in 2004, the feds gave Al-Haramain counsel and directors a document labeled “TOP SECRET.” Id. Based largely on this document (“The Sealed Document”) Al-Haramain brought series of constitutional claims alleging illegal taping in federal court. Id. The district court judge refused to allow Al-Haramain renewed access to the Sealed Document, but permitted reconstruction of its contents from counsels’ memory in affidavits. Id. at *4. The court also rejected the government’s request to dismiss the case as barred by the “state secrets privilege.” (“The state secrets privilege is a common law evidentiary privilege that permits the government to bar the disclosure of information if there is a reasonable danger that disclosure will expose military matters which, in the interest of national security, should not be divulged.”) Id. at *5. The court sua sponte certified the case for interlocutory appeal.

Issue(s): 1. Subject-Matter & State Secrets:. “The government [argues] that the suit is foreclosed by the state secrets privilege, an evidentiary privilege that protects national security and military information in appropriate circumstances.” Id. at *1.

2.Recreation of the Secret Document: “We must . . . address the government’s invocation of the state secrets privilege as to the Sealed Document and its assertion that Al-Haramain cannot establish either standing or a prima facie case without the use of state secrets.” Id. at *10.

Held: 1. Subject-Matter & State Secrets: “In light of extensive government disclosures about the [Terrorist Surveillance Program], the government is hard-pressed to sustain its claim that the very subject matter of the litigation is a state secret . . . Thus, we agree with the district court that the state secrets privilege does not bar the very subject matter of this action.” Id. at *2 (footnote omitted).

2. Recreation of the Secret Document; “[W]e reverse the district court’s order allowing Al-Haramain to reconstruct the essence of the document through memory. Such an approach countenances a back door around the privilege and would eviscerate the state secret itself. Once properly invoked and judicially blessed, the state secrets privilege is not a half-way proposition.” Id. at *2.

Of Note: This case involves solely international surveillance, though the opinion dryly observes that there have been allegations of warrantless domestic wiretapping as well. See id. at *2 & n.1, quoting Leslie Cauley, NSA Has Massive Database of Americans’ Phone Calls, USA TODAY, May 11, 2006 at A1.

How to Use: Al-Haramain is primarily of legal interest to those select few who do terrorist and FISA cases. The way the case handles the state secret privilege, however, is of evidentiary interest – and concern – beyond this narrow context. This is a thoughtful panel (McKeown, Hawkins, and Pregerson), generally suspicious of broad claims of government privilege. Nonetheless, the Court effectively holds that the “state secret” privilege can’t be waived. Id. at *2. Thus, although in this case the warrantless surveillance might well have been illegal, and although Al-Haramain knows that it had been subject to wiretaps because of inadvertent disclosure of the Secret Document, Al-Haramain can’t repeat what it read in the Secret Document and survive in its suit. Beware of the government trying to import this troubling deference into normal “vanilla” claims of privilege, like Roviaro litigation.

For Further Reading: For a candid and intriguing take on this case by one of the plaintiff’s attorneys, and an interesting theory on the British role in the surveillance in this case, visit his blog here. For a general summary that purports to present both sides of the issue, see a long post here (includes photos and videos of the counsel and judges in the case).

Steven Kalar, Senior Litigator N.D. Cal. FPD. Website available at www.ndcalfpd.org

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