[Infowarrior] - Judge: No state secrets privilege, OKs wiretap suit

[Richard Forno]

Judge doesn't buy state secrets privilege, OKs wiretap suit

By Julian Sanchez | Published: January 06, 2009 - 01:31PM CT

http://arstechnica.com/news.ars/post/20090106-judge-doesnt-buy-state-secrets-privilege-oks-wiretap-suit.html

A federal judge ruled Monday that a lawsuit filed by an Islamic  
charity alleging that it was illegally wiretapped by the National  
Security Agency may proceed, and issued a stinging rebuke to  
government lawyers who have repeatedly sought to invoke the state  
secrets privilege to block litigation.

The case, Al Haramain v. Bush, is unusual in that—unlike the  
Electronic Frontier Foundation's more publicized suits against the NSA  
and complicit telecoms—the plaintiffs in this case know that the  
directors of the Al-Haramain Islamic Foundation were specifically  
subject to warrantless surveillance, thanks to a government blunder  
that put a classified memo in the hands of the charity's lawyers. An  
appellate court ruled last year that the secret document had to be  
turned over to the government, and so could not be used to establish  
standing to sue. But in an opinion issued this summer, Judge Vaughn  
Walker, who has been handling a spate of suits concerning the NSA's  
super-secret "Stellar Wind" program, decided that the foundation could  
still seek to show they'd been spied upon using public evidence.

On Monday, Walker concluded that they had met that burden. "Without a  
doubt," he wrote, plaintiffs have alleged enough to plead 'aggrieved  
persons' status so as to proceed to the next step in proceedings."  
Blocked from using the secret memo, attorneys for Al Haramain  
assembled a timeline, drawing on FBI memoranda and Congressional  
testimony, suggesting that the government had been privy to  
conversations between foundation directors in which they discussed  
people with links to Osama bin Laden. The foundation's assets were  
frozen in 2004 when it was classified as a "Specially Designated  
Global Terrorist" group—a designation the government acknowledged to  
be partially based on classified documents derived from surveillance.

The Justice Department has repeatedly sought to block the suit by  
invoking national security concerns. Urging the court to reject the  
foundation's circumstantial evidence as insufficient, they argued that  
the court "cannot exercise jurisdiction based on anything less than  
the actual facts." But in language echoing previous rulings, Walker  
rejected that argument, noting that Congress had made specific  
provision within the Foreign Intelligence Surveillance Act for  
"aggrieved persons" to seek redress for improper surveillance.

A core principle of jurisprudence is that statutes should be read in a  
way that does not render any provision meaningless, and Walker  
reasoned that Congress would not have explicitly provided for in  
camera review of classified documents if the government could simply  
cry "state secrets" in the face of litigation. For the same reason, he  
concluded that it had to be possible for plaintiffs to establish their  
standing to sue without relying on the government's voluntary  
disclosure of classified information.

At times, a note of irritation crept into Walker's even, judicial  
language. At one point, he described the government's argument as  
"without merit," and characterized another as "circular." He also  
seemed impatient with the Justice Department's refusal to provide any  
classified documents addressing Al Haramain's specific claims for  
review in chambers.  "It appears... that defendants believe they can  
prevent the court from taking any action under 1806(f) by simply  
declining to act," wrote Walker.

They will have to act now. Walker is giving the government two weeks  
to turn over the secret document that launched the case. Barring any  
surprises, his in camera review should confirm what we've known all  
along: that Al Haramain was subject to warrantless wiretapping. He  
also ordered the government to begin the process of securing security  
clearances for Al Haramain's attorneys, which will grant them the  
limited access to classified material needed to participate in the  
case. The government will have until February 13 to comply with that  
order. They must also review documents related to the case in order to  
determine whether any can safely be declassified.

A hearing later this month will set the schedule for future  
proceedings in the case.