9th. Circuit Ct. of Appeals Suggests New Way to Challenge Federal Electronic Spying Secrecy Laws which Restrict Civil Actions

Bob Egelko, San Francisco Chronicle Staff Writer  November 24, 2007
Despite their latest court setback, challengers of President Bush’s electronic surveillance program have another arrow in their quiver – a section of the same law that Bush spurned when he first ordered wiretaps six years ago.
The Ninth U.S. Circuit Court of Appeals in San Francisco decided an important issue in the administration’s favor Nov. 16 when it ruled that an accidentally released government document, purportedly showing wiretaps of an Islamic charity on the government’s terrorist list, was so sensitive that even a lawyer’s recollection of it couldn’t be used in court.
Without such evidence, the charity can’t show it was harmed by the surveillance program. Ordinarily, that would leave it with no grounds to sue over the program’s legality.
But rather than dismissing the suit, the court returned the case to U.S. District Judge Vaughn Walker in San Francisco and said he should decide whether Congress created an alternate route to challenge secret surveillance – a 1978 law regulating wiretapping of suspected foreign terrorists and spies.
That law, the Foreign Intelligence Surveillance Act, was prompted by a post-Watergate congressional investigation that found federal spy agencies had for decades conducted surveillance of political dissidents as well as security risk suspects.
The law requires federal agents to get a warrant for searches or electronic surveillance in espionage and foreign terrorism cases. It also allows federal judges to review, behind closed doors, people’s claims that they have been the victims of illegal eavesdropping.
The appeals court told Walker to look at whether the now-defunct charity, the Al-Haramain Islamic Foundation, could use that provision to have a judge look at the document that purportedly showed the government had wiretapped its phones.
Walker’s conclusion about whether the charity can invoke the 1978 law to keep its suit alive could determine whether any court has the power to decide the legality of the surveillance program that Bush ordered after the terrorist attacks of Sept. 11, 2001.
“It’s our gateway to litigating the merits” of the program, said attorney Jon Eisenberg, who represents Al-Haramain.
If courts decide that the 1978 law can be used to challenge an entire surveillance program, he said, Congress will have the power to rein in a president’s use of the “state secrets” defense, which the Bush administration has often employed to seek dismissal of lawsuits related to national security.
The prospect of such restrictions alarms Justice Department lawyers. In papers filed with the appeals court, they argued that the closed-door hearings authorized by the 1978 law had a narrow purpose – resolving disputes over evidence gathered by electronic surveillance for prosecutions in spying and terrorism cases.
A broader interpretation of the law, opening the door to civil suits by surveillance targets seeking to overturn the entire program, would raise “serious constitutional questions” and interfere with “the president’s ability to protect vital military and intelligence secrets from public disclosure,” government lawyers said.
The Al-Haramain suit is one of more than 40 surveillance-related cases that a judicial panel transferred last year to Walker, an appointee of former President George H.W. Bush.
The suits were all prompted by President Bush’s acknowledgement in December 2005 that he had authorized the National Security Agency in 2001 to intercept phone calls and e-mails between Americans and foreign terrorist suspects without judicial approval.
Bush said the 1978 law’s requirement of warrants for electronic surveillance was too cumbersome in the post-9/11 world and interfered with his constitutional powers in wartime. Congress amended the law in August to allow the surveillance to continue, with limited court review, at least through February 2008.
Some of the pending lawsuits challenge the legality of the program, and others accuse telecommunications companies of illegally sharing their networks and records with the government. The Al-Haramain case is unique because the government inadvertently released a document to the charity in 2004 that reportedly showed it had been wiretapped.
The charity returned the document after federal officials learned of their error, but a judge in Oregon allowed Al-Haramain’s lawyers to testify about its contents from memory to establish the charity’s right to sue.
That ruling became more important in July when a federal appeals court dismissed the only other challenge to the surveillance program that had reached the appellate level. The court said the plaintiffs in that case – lawyers, academics and journalists who believed their overseas communications had been monitored – had no standing to sue because they lacked evidence of surveillance. The plaintiffs have appealed to the Supreme Court.
The implication was that only a plaintiff with evidence of surveillance – such as Al-Haramain – had the right to challenge the program. But on Nov. 16, the appeals court in San Francisco barred the charity from making any use of the secret document, including its lawyers’ recollection of it.
The court said the charity lacks standing to sue unless the 1978 law, with its closed-door hearings, trumps the government’s power to insulate its secrets.
“We believe (the 1978 law) applies and that Congress had this very situation in mind,” said Ann Brick, an American Civil Liberties Union lawyer who represents the plaintiffs in another case before Walker. “Congress set up a procedure in which the secrecy of the evidence is preserved, thus (there is) no harm to national security, and yet the court can adjudicate the merits of the controversy.”
Government lawyers argued that only people who are being prosecuted for espionage or terrorism crimes, and claim the evidence against them was obtained by illegal surveillance, have the right to a hearing on secret evidence. The 1978 law wasn’t intended to be used as a launching pad for civil suits challenging programs that involve state secrets, the lawyers said.
It’s a difficult issue, said Derek Shaffer, executive director of the Stanford Constitutional Law Center. The group is not involved in the Al-Haramain case but has filed arguments supporting another suit, pending before the Ninth Circuit, on behalf of customers of AT&T who accuse the company of collaborating in the Bush administration’s surveillance program.
Shaffer said the Justice Department has a strong argument that Congress wasn’t thinking of civil cases when it passed the 1978 law. On the other hand, he said, courts should remember that Congress enacted the law in response to revelations of decades of unchecked, politically motivated domestic surveillance.
“If all this is beyond inquiry, we will never have a meaningful system of checks and balances,” Shaffer said. If courts conclude they lack the power to decide whether the surveillance program is legal, he said, they will convey “an important lesson about a blind spot in our system of government.”

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