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ACLU – November 16, 2007
ACLU welcomes federal court ruling in "state secrets"
lawsuit about warrantless wiretapping
SAN FRANCISCO – The U.S. Court of Appeals for the Ninth Circuit ruled today that a charity that sued President Bush for engaging in unconstitutional surveillance can pursue its case in court.
The Bush administration had asked the appellate court to dismiss the suit on the grounds that the very subject matter of the litigation – the National Security Agency's warrantless wiretapping program – was a state secret.
The Ninth Circuit rejected this argument, noting that the government had publicly acknowledged the surveillance program and that senior officials had discussed the program in press conferences and statements.
The court did, however, find that an inadvertently disclosed document indicating that the charity had been the target of surveillance was properly protected by the state secrets privilege, and returned the case back to the district court to determine whether the 1978 Foreign Intelligence Surveillance Act preempts the state secrets privilege in this context.
Jameel Jaffer, Director of the American Civil Liberties Union’s National Security Project and counsel to the plaintiffs in ACLU v. NSA, in which a request for review is pending before the Supreme Court, said:
"As the court properly recognized, the government should not be permitted to shut down litigation simply by asserting that a case implicates state secrets. In the al-Haramain case and many others, it's clear that the executive branch is using the state secrets privilege not to protect legitimate national security information but to shield the government and its agents from accountability for systemic violations of the Constitution. A state secrets privilege that operates in this way serves neither national security nor the country's broader interest in the rule of law."
The following can be attributed to Ann Brick, a staff attorney with the ACLU of Northern California and counsel in two U.S. District Court cases in the Northern District of California involving state secrets claims by the government: Riordan v. Verizon Communications, Inc., which challenges Verizon's turnover of customer call records to the NSA, and Mohamed v. Jeppesen Dataplan, Inc., which challenges the practice of "extraordinary rendition":
"The Bush administration's ever-increasing use of the state secrets privilege to thwart holding it accountable for its illegal conduct remains deeply troubling. We see it in the al-Harmain case, where the administration has baldly admitted that it acted in utter disregard of the Foreign Intelligence Surveillance Act and we see it in the administration’s use of the privilege to avoid judicial scrutiny of violations of basic human rights on questions of torture and rendition. The courts have an important role to play in all of these cases and it is very significant that the Ninth Circuit sent the al-Haramain case back to the district court for a determination of whether FISA trumps the common law state secrets privilege."
http://www.aclu.org/safefree/spying/32832prs20071116.html
New York Times - November 21, 2007
Wiretap issue leads judge to warn of retrial in terror case
By Eric Lichtblau
WASHINGTON, Nov. 20 — A federal judge warned Tuesday that if the government did not allow lawyers to review classified material on possible wiretapping of an Islamic scholar convicted of inciting terrorism, she might order a new trial for him.
The unexpected development is the latest legal complication involving the National Security Agency’s wiretapping program, which has produced challenges from criminal defendants as well as civil lawsuits against the government and phone carriers.
Lawyers for Ali al-Timimi, an Islamic scholar in Northern Virginia sentenced to life in prison in 2005 for inciting his followers to commit acts of terrorism, maintain that he may have been illegally wiretapped by the agency as part of its program of eavesdropping without warrants that was approved by President Bush soon after the Sept. 11 attacks.
In April 2006, four months after the N.S.A. program was publicly disclosed, an appellate court directed the trial judge in Mr. Timimi’s case to reconsider it in light of his lawyers’ accusations.
But the issue has been bogged down in court for 18 months, with intelligence officials making a series of classified appearances before the judge, Leonie M. Brinkema, to explain the government’s position. Lawyers for Mr. Timimi and even the trial prosecutors have not been allowed to hear the closed-door discussions.
Jonathan Turley, the lead appellate lawyer for Mr. Timimi, said the defense’s lack of access to crucial evidence had made it hard to litigate the case. “We’re shadowboxing in the courtroom with unnamed officials at unnamed agencies,” Mr. Turley said in a telephone interview.
On Tuesday, at an open hearing in her courtroom in Alexandria, Va., Judge Brinkema appeared to be out of patience as well, lawyers there said. The judge, who also handled the terrorism trial that resulted in a life sentence for Zacarias Moussaoui, expressed frustration over the recent disclosure that the government had misled her at the Moussaoui trial by denying the existence of any tape recording of high-value Qaeda detainees. In a Nov. 9 filing with the court, the government acknowledged that three such tapes did exist but said the prosecutors at the Moussaoui trial had not known of them.
Judge Brinkema told federal prosecutors at the Timimi hearing that she wanted the government to find a way to give trial prosecutors, defense lawyers and her own clerk the clearance to review classified material in the case. That could require the direct intervention of the White House, since Mr. Bush has personally handled decisions on issuing clearances for the N.S.A. eavesdropping program.
William Olson, another lawyer for Mr. Timimi at the hearing, said the judge’s tone of frustration indicated “that the situation we’ve been operating under has to change.” And she made clear, Mr. Olson and others at the hearing said, that she was prepared to order a new trial for Mr. Timimi if the problem was not resolved.
Judge Brinkema appeared mindful of the problems in the Moussaoui case when, issuing a written ruling hours after Tuesday’s hearing, she said she wanted a trial prosecutor in the Timimi matter to receive the needed clearances and review the classified submissions to the court “so he can be assured that his representations to the court are accurate.”….
http://www.nytimes.com/2007/11/21/washington/21nsa.html?_r=2&th=&oref=slogin&emc=th&pagewanted=print
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