The U.S. Court of Appeals for the Ninth Circuit Dismisses a Challenge to Warrantless Wiretapping But Leaves Plaintiffs With a Sliver of Hope

By MICHAEL C. DORF
Monday, Nov. 19, 2007

Last week, in Al-Haramain Islamic Foundation, Inc. v. Bush, the U.S. Court of Appeals for the Ninth Circuit ruled that the "state secrets privilege" forbids plaintiffs from going forward with their challenge to the National Security Agency's ("NSA's") warrantless wiretapping program. In order to make their case, the court ruled, the plaintiffs would have to rely on evidence that would compromise national security. Thus, the appeals court reversed a district court order that would have permitted the case to proceed based on recollections of a classified document, rather than the classified document itself.

The ruling in Al-Haramain was not a complete victory for the government, however, for two reasons. First, en route to its conclusion that the particular lawsuit brought by the Al-Haramain plaintiffs was barred by the state secrets privilege, the appeals court rejected the government's argument that the state secrets privilege forbids all lawsuits challenging the warrantless wiretapping program.

Second, the appeals court did not order the case dismissed, but instead remanded the case for a determination of whether the state secrets privilege even applies in a case of this sort. The plaintiffs argued that the procedures set forth in the Foreign Intelligence Surveillance Act ("FISA") supersede the state secrets privilege. Because the district court had not ruled on this argument, the appeals court remanded for initial consideration there.

The Al-Haramain litigation and other cases in which the government has invoked the state secrets privilege raise fundamental questions about the role of the courts in curbing executive abuses that are defended in the name of national security. Yet thus far, the Supreme Court has shown little appetite for the issue, and may be able to duck it for the foreseeable future. In the meantime, therefore, we desperately need internal Executive Branch safeguards to ensure that the doctrine is not abused.

The Warrantless Wiretapping Program and the State Secrets Privilege

After 9/11, President Bush authorized, and thereafter repeatedly re-authorized, the NSA to intercept communications between Americans and suspected terrorists. The New York Times learned of the secret program and after sitting on the story for a year, published an account of it in December 2005.

FISA on its face requires warrants for surveillance of this sort. Although it permits warrantless wiretapping in emergency circumstances, as long as the government subsequently seeks a retroactive warrant, the NSA program bypassed the FISA warrant procedure entirely. Accordingly, since the program's revelation, various plaintiffs have filed lawsuits claiming that the program violated their rights under FISA. Such lawsuits typically include claims under the Constitution's Fourth Amendment and other provisions of law as well.

The government argued that the Al-Haramain case should be dismissed under the state secrets privilege, a judge-made rule that forbids the courts to hear civil suits when disclosure of the evidence in the case would jeopardize national security. The leading case recognizing the state secrets privilege is the Supreme Court's ruling in United States v. Reynolds. That 1953 decision effectively dismissed a lawsuit by the widows of three civilians killed by the crash of an Air Force plane. The Court denied the plaintiffs access to the official accident report on the strength of a state secrets privilege that the Justices formally recognized in the Reynolds case itself.

As John Dean explained in a column for this site last year, the real story of Reynolds is shameful. When the secret accident report at issue in that case was finally made public years later, it was clear that it contained nothing that posed a threat to national security.

Nonetheless, as the appeals court in Al-Haramain explained, although Reynolds is often cited as the first case to recognize the state secrets privilege as such, the core principle was recognized as early as 1875, in the Supreme Court decision in Totten v. United States. That ruling disallowed a lawsuit on behalf of an alleged Union spy who had not been paid for his services during the Civil War. Merely permitting the case to go forward, the Court said, would undermine the efficacy of military spying. The Totten case did not refer to a "state secrets privilege" in so many words, but it applied much of the same logic that was later applied in Reynolds.

The Application of the State Secrets Privilege in Al-Haramain

Whatever the historical pedigree of the state secrets privilege, the Supreme Court is highly unlikely to abandon it and, of course, a lower federal court has no power to disregard a Supreme Court precedent that has not been overruled. The real action in the courts, as a result, will typically concern how much deference to give the government in applying the state secrets privilege.

The appeals court in Al-Haramain appeared to split the difference. It rejected the government's claim that the case could not go forward because any mention of the warrantless wiretapping program would compromise national security. As the appeals court explained, the government itself has disclosed important aspects of the program to the public. That cat is out of the bag.

Nonetheless, the appeals court also accepted the government's contention that the claims of these particular plaintiffs could not be litigated consistent with the state secrets privilege. The plaintiffs sought to rely on a top secret document that the government had accidentally provided to them in 2004 as part of a proceeding to freeze their assets. (Al-Haramain bills itself as a charitable organization but has been classified as a front for al Qaeda by the United States and the United Nations.) According to the plaintiffs, this document--which the government subsequently retrieved--established that they were targets of the NSA's warrantless surveillance program. They sought to rely on a remaining copy, which the court examined under seal.

It is impossible for an outside observer to evaluate the appeals court's conclusion that use of the sealed document would jeopardize national security, precisely because the document remains secret. It is thus not clear why the appeals court--or, for that matter, the district court--thought that any potential harm could not be avoided by conducting those aspects of the case that called for reliance on the top secret document in a closed courtroom. Disclosure to the plaintiffs, after all, would not appear to do any further harm, because they have already seen it, and apparently even managed to keep some copies. Perhaps the appeals court thought that any ruling in the case would tacitly disclose to the broader public what the top secret document contains. But in light of the continued secrecy of the document, we can only speculate.

Do the Plaintiffs Have Standing? A Catch-22

One might reasonably wonder why the state secrets privilege played such a key role in the Al-Haramain decision. After all, the case principally raises questions of law that do not turn much on what exactly happened to these particular plaintiffs. The issue, rather, is whether the NSA warrantless surveillance program is legal.

The Al-Haramain plaintiffs needed the top secret document to establish that their own communications had been intercepted. Without evidence to that effect, the appeals court in Al-Haramain said, the plaintiffs lacked standing. To be clear, the court did not actually rule that the plaintiffs lack standing. Instead, the court said that the plaintiffs' lawyers conceded that, absent use of the top secret document, they could not demonstrate standing.

That may have been an unwise concession. Granted, in a ruling in July of this year in the case of ACLU v. NSA, the U.S. Court of Appeals for the Sixth Circuit held that journalists, professors and lawyers who communicate with people who might be suspected of being terrorists lacked standing to challenge the same NSA program at issue in the Ninth Circuit case of Al-Haramain. The plaintiffs in the Sixth Circuit case had argued that the fear of government eavesdropping was itself a cognizable injury: a chilling effect on their right to speak freely.

But the Sixth Circuit rejected this argument as an attempt to recast a privacy claim as a free speech claim. "Because the plaintiffs cannot show that they have been or will be subjected to surveillance personally," the Fourth Circuit said, "they clearly cannot establish standing under the Fourth Amendment or FISA." Apparently the Al-Haramain plaintiffs were so convinced that the Ninth Circuit would adopt the same logic that they did not even bother to contest the point.

Yet if so, that may have been a mistake, for there is more than a pinch of bootstrapping in the government's position.

The government concedes that it is spying on people but does not say who it is spying on. When people who fear that they are being spied upon sue to challenge the legality of the program, they are told that they lack standing because they cannot show that they, in particular, are being spied upon. And why not? Because the identity of the targets is secret. Heads, you win; tails, I lose.

Does FISA Supersede the State Secrets Privilege?

On remand to the district court, the Al-Haramain plaintiffs could still prevail if they can show that FISA supersedes the state secrets privilege. In Reynolds, the Supreme Court declared the state secrets privilege a principle of evidence law. At the time Reynolds was decided, federal evidence law was judge-made law. In 1975, the Federal Rules of Evidence were enacted, but Rule 501 preserves the power of the courts to fashion privileges "in the light of reason and experience."

Accordingly, we can understand the continued force of the state secrets privilege as resting on the exercise of a privilege-making power delegated to the courts in 1975 by Federal Rule of Evidence 501. FISA was enacted three years later, and it provides a detailed remedial scheme--including provisions for protecting against the disclosure of information that could harm national security--in cases challenging surveillance as violating FISA. Thus, the plaintiffs will argue on remand that the detailed FISA rules supersede the general state secrets privilege, in cases brought under FISA.

Is this argument persuasive? Perhaps. In a related context, the Supreme Court has said that the establishment by Congress of a detailed scheme of administrative remedies for some statutory right counsels against judge-made private rights of action to enforce the underlying right. If the existence of a detailed remedial scheme can prevent the exercise of judicial lawmaking power to recognize a right to be heard in court, then in different circumstances it should be able to prevent the exercise of judicial lawmaking power to deny a right to be heard in court.

The Supreme Court and the Largely Unmet Need for Internal Executive Checks

One way or another, questions about the applicability and scope of the state secrets privilege will likely make it to the Supreme Court in due course. Such review does not seem imminent, however. The Court is highly unlikely to review the Ninth Circuit decision in Al-Haramain in its current posture, because the Court tends not to grant a petition for a writ of certiorari in cases that have been remanded to the district court for further proceedings.

The government also invoked the state secrets privilege in the Sixth Circuit case of ACLU v. NSA, but the privilege did not figure into the court's ruling. Thus, even if the Court agrees to accept the plaintiffs' petition in that case--which was filed last month--it will not have an opportunity to pass directly on the state secrets privilege.

Since January of this year, the NSA program of electronic surveillance has been under the supervision of the FISA Court. However, there may be other, as-yet-undisclosed surveillance programs which could be subject to future court challenges, and surveillance cases are but one category of cases in which the government can invoke the state secrets privilege.

The case that most starkly presented the question of how to define and apply the state secrets privilege is El-Masri v. United States. In March, the U.S. Court of Appeals for the Fourth Circuit decided that El-Masri could not challenge his "extraordinary rendition" to Afghanistan and Albania or his mistreatment at the hands of his captors. The state secrets privilege was crucial to the appeals court's ruling. However, last month the Supreme Court declined to review El-Masri's case.

Thus, it will take some time before a case squarely presenting the state secrets privilege reaches the Supreme Court. And given the nature of the doctrine, even if the Supreme Court takes a case, it is quite likely to grant the Executive Branch considerable deference.

Such deference would be a tolerable price to pay for national security if we had some assurance that Executive officials were only invoking the state secrets privilege in cases of real need. But unfortunately, the Bush Administration has shown few signs of such restraint to date. Perhaps the new Attorney General will rein in the Administration's tendency to push--indeed, to tear open--the envelope of legality.


Michael C. Dorf is the Isidor & Seville Sulzbacher Professor of Law at Columbia University. He is the author of No Litmus Test: Law and Politics in the Twenty-First Century and he blogs at www.michaeldorf.org.

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