District Court Finds FISA Preempts State Secrets Doctrine; Government Wiretap Litigation To Continue
By Anna Lamut – Edited by Andrew Ungberg
Al-Haramain v. Bush, No 06-1791 VRW,
District Court for the Northern District of California, January 5, 2009
On Monday, January 5, 2009, Chief Judge Vaughn* Walker of the United States District Court for the Northern District of California denied the U.S. government’s third motion to dismiss the Al-Haramain v. Bush litigation, in which the Al-Haramain Islamic Foundation sued the Bush administration for illegal surveillance of the organization. The original suit was based on an inadvertently revealed, top-secret government call log which indicated Al-Haramain had been the subject of wiretapping. However, the case was nearly dismissed after the court found the log to be a state secret, and thus would not be admissible due to national security concerns. Al-Haramain claimed the document showed the organization was subject to surveillance outside of the scope of the Foreign Intelligence Surveillance Act (FISA).
Ed Brayton of Scienceblogs states that this case may finally end use of the secrets privilege as a means of avoiding all judicial scrutiny of the NSA’s wiretapping program.
Julian Sanchez of Ars Technica points out that the suit is unique in that the Electronic Frontier Foundation, whose attorneys represent the Foundation’s directors, does not normally represent clients who they know were targeted by the NSA for warrantless surveillance. Sanchez also notes that in the opinion, Chief Judge Walker pointed out that in writing the FISA, Congress would not have provided for in camera review of classified documents if it meant to allow the government to use the state secrets provision in each case.
The Al-Haramain Islamic Foundation of Oregon is a Saudi Arabian charity that is currently listed as a terrorist organization by the U.S. government, and whose assets were frozen in 2004 when the organization was classified as a “Specially Designated Global Terrorist” organization. Last summer the Ninth Circuit determined that the sealed document was a state secret, but remanded to the District Court for the Northern District of California to determine whether, because FISA can preempt the state secrets privilege, the case could nonetheless progress. The District Court found while FISA preempts the state secrets privilege, FISA would only provide plaintiffs a viable remedy if they can show that they are “aggrieved persons” within the meaning of the Act. To determine this, the District Court allowed Al-Haramain and its lawyers to amend their complaint.
According to the District Court, Al-Haramain’s directors were able to successfully show that they were “aggrieved persons” under FISA’s definition through evidence other than the secret document, and the suit may continue The Court also set up a process whereby the litigation could proceed without revealing sensitive information; it ordered the government to provide security clearances for Al-Haramain’s attorneys, to provide for Chief Judge Walker to view the secret document in camera, and to review the classified documents so as to determine which can safely be declassified.
*Correction – This article incorrectly reported Chief Judge Vaughn Walker’s first name as John. Judge John Walker sits on the Second Circuit and took no part in the Al-Haramain decision.