Court Cuts Into Wiretapping Case

Judges rule to keep key document out of major case against warrantless wiretaps.

Nov. 16, 2007— -- A California-based federal appeals court rejected an Islamic charity's challenge to the Bush administration's warrantless wiretapping program Friday.

The unanimous decision by the liberal appeals court is a major victory for the administration, which had argued the lawsuit would endanger national security. The administration had lost in the lower court and was not confident it would prevail on appeal.

The administration has been hit with scores of lawsuits over the wiretapping program since The New York Times first disclosed its existence in 2005.

Earlier this year, a federal appeals court in Ohio threw out a similar challenge filed by the American Civil Liberties Union and a group of lawyers and journalists, ruling that the challengers did not have legal grounds to sue because they could not show they had been personally harmed by the Terrorist Surveillance Program.

The California lawsuit, by Al-Haramain Islamic Foundation, was believed to have a stronger basis because the group had seen a classified document that it claimed would show it had been put under warrantless surveillance. The document was central to the case, and the lawyer for the group acknowledged it wouldn't have legal standing to pursue the lawsuit without it.

But in Friday's 3-0 decision, the appellate panel rejected the charity's efforts to use the secret document in its lawsuit. The court ruled that the document, which it reviewed behind closed doors, was protected by the "state secrets" privilege, a doctrine that protects national security and military information. As a result, the document could not be used in any way, the court ruled.

The court emphasized that it had closely analyzed the document and concluded that disclosing the information — and how the administration gathered it — "would undermine the government's intelligence capabilities and compromise national security." It ruled that disclosure of the document or a description of its contents were completely barred from the lawsuit.

"We take very seriously our obligation to review the documents with a very careful, indeed a skeptical, eye, and not to accept at face value the government's claim or justification of privilege," the court said. "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."

The court said there was a "special burden" to ensure 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," the court said.

After reviewing the documents and other filings, which involved classified information, the court concluded the government's claims were "exceptionally well documented" and that the document could not be used in any way.

It then said without the document, the charity could not show it had been harmed by the warrantless wiretapping program and therefore did not have legal grounds to sue.

The court did leave open the door slightly for the charity, a designated terrorist organization, to revive its lawsuit. It ordered the lower court to decide whether the Foreign Intelligence Surveillance Act pre-empted the state secrets privilege and, if so, whether the group could still go forward. But that is a novel — and very difficult — argument to make.