9th Circuit rejects challege to "warrantless wiretaps"

LA Times:

A federal appeals court in San Francisco today handed a major victory to the Bush administration, ruling that a lawsuit challenging the government's warrantless wiretapping program could not go forward because of the "state secrets" privilege.

In a 3-0 decision, the U.S. 9th Circuit Court of Appeals sided with the government, which had argued that allowing an Islamic charity's claims that it was illegally spied upon to go forward would threaten national security.

These guys have now lost in two of the most liberal jurisdictions in the country. This suggest that Sen. Pat Leahy and other liberal Democrats will not get much backing from the courts in their attempts to impose terrorist rights. It also suggest that the current attempts to revise FISA are unconstitutional.

Patterico has more on the case.


As the court noted, this line of authority goes back to espionage cases following the Civil War where spies hired by the Union sought to recover damages relating to the agreement. The Supreme Court denied the suit on the basis that the agrement itself was secret, and that secrecy precludes any court action to enforce its terms.

In this case the Court held that the government had properly invoked the State Secrets privilege with respect to document(s) and information which the plaintiffs would need to proceed – such as confirmation that the plaintiffs had been the target of the Terrorist Surveillance Program and the details of how the program operated.

Money quote from p. 22 of the pdf:

“Having reviewed it in camera, we conclude that the Sealed Document is protected by the state secrets privilege, along with the information as to whether the government surveilled Al-Haramain. We take very seriously our obligation to review the documents with a very careful, indeed a skeptical, and not to accept at face value the government’s claim or justification of privilege. Simply saying “military secret,” “national security” or “terrorist threat” or invoking an ethereal fear that disclosure will threaten our nation is insufficient to support the privilege. Sufficient detail must be—and has been—provided for us to make a meaningful examination. The process of in camera review ineluctably places the court in a role that runs contrary to our fundamental principle of a transparent judicial system. It also places on the court a special burden to assure itself that an appropriate balance is struck between protecting national security matters and preserving an open court system. That said, we acknowledge the need to defer to the Executive on matters of foreign policy and national security and surely cannot legitimately find ourselves second guessing the Executive in this arena.

Hard to find a place in there anywhere for a “Bush/Cheney are worse than Hitler” jibe.


Patterico says the case involving the telecoms has been severed and remains pending. This makes the administration's request for protection of the telecoms from these suits all the more relevant.


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