This morning the 9th Circuit Court of Appeals released an opinion in Al-Haramain Islamic v. Bush. The Circuit summarizes the appeal as follows:
"Following the terrorist attacks on September 11, 2001, President George W. Bush authorized the National Security Agency ('NSA') to conduct a warrantless communications surveillance program. The program intercepted international communications into and out of the United States of persons alleged to have ties to Al Qaeda and other terrorist networks. Though its operating parameters remain murky, and certain details may forever remain so, much of what is known about the Terrorist Surveillance Program ('TSP') was spoon-fed to the public by the President and his administration.
After The New York Times first revealed the program's existence in late 2005, government officials moved at lightning-speed to quell public concern and doled out a series of detailed disclosures about the program. Only one day after The New York Times' story broke, President Bush informed the country in a public radio address that he had authorized the interception of international communications of individuals with known links to Al Qaeda and related terrorist organizations. Two days after President Bush’s announcement, thenAttorney General Alberto Gonzales disclosed that the program targeted communications where the government had concluded that one party to the communication was a member of, or affiliated with, Al Qaeda. The Department of Justice followed these and other official disclosures with a lengthy white paper in which it both confirmed the existence of the surveillance program and also offered legal justification of the intercepts.
The government's plethora of voluntary disclosures did not go unnoticed. Al-Haramain Islamic Foundation, a designated terrorist organization, and two of its attorneys (collectively, 'Al-Haramain') brought suit against President Bush and other executive branch agencies and officials. They claimed that they were subject to warrantless electronic surveillance in 2004 in violation of the Foreign Intelligence Surveillance Act, 50 U.S.C. 1801 et seq. ('FISA'), various provisions of the United States Constitution, and international law. The government countered that the suit is foreclosed by the state secrets privilege, an evidentiary privilege that protects national security and military information in appropriate circumstances.
Essential to substantiating Al-Haramain's allegations against the government is a classified 'Top Secret' document
(the 'Sealed Document') that the government inadvertently gave to Al-Haramain in 2004 during a proceeding to freeze the organization’s assets. Faced with the government's motions to dismiss and to bar Al-Haramain from access to the Sealed Document, the district court concluded that the state secrets privilege did not bar the lawsuit altogether. The court held that the Sealed Document was protected by the state secrets privilege and that its inadvertent disclosure did not alter its privileged nature, but decided that Al-Haramain would be permitted to file in camera affidavits attesting to the contents of the document based on the memories of lawyers who had received copies.
In light of extensive government disclosures about the TSP, the government is hard-pressed to sustain its claim that the very subject matter of the litigation is a state secret. Unlike a truly secret or 'black box' program that remains in the shadows of public knowledge, the government has moved affirmatively to engage in public discourse about the TSP. Since President Bush's initial confirmation of the program's existence, there has been a cascade of acknowledgments and information coming from the government, as officials have openly, albeit selectively, described the contours of this program. Thus, we agree with the district court that the state secrets privilege does not bar the very subject matter of this action. After in camera review and consideration of the government's
documentation of its national security claim, we also agree that the Sealed Document is protected by the state
secrets privilege. However, we reverse the court's order allowing Al-Haramain to reconstruct the essence of the documentthrough 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.
Nonetheless, our resolution of the state secrets issue as applied to the Sealed Document does not conclude the litigation. Al-Haramain also claims that FISA preempts the common law state secrets privilege. We remand for determination of this claim, a question the district court did not reach in its denial of the government's motion to dismiss."