Interesting Ninth Circuit Decision on NSA Program

A three-judge panel of the Ninth Circuit issued an interesting opinion today in the case of Al-Haramain v. Bush.

Before I get to that, though, let me provide a little background. As you may remember, this is the case where the Justice Department inadvertently produced a document to the attorneys for the Al-Haramain Islamic Foundation that, apparently, revealed that members of the organization had been the targets of warrantless surveillance by the NSA. The document--which was labeled "TOP SECRET"--was accidentally turned over to the organization in 2004 during the course of a civil designation proceeding (the government was seeking a declaration that Al-Haramain was a "Specially Designated Global Terrorist"), but its significance wasn't fully appreciated until the existence of the NSA's warrantless surveillance was first reported by the New York Times in December of 2005. Shortly thereafter, Al-Haramain commenced this lawsuit against the government claiming that it had illegally spied on its members.

Because the Al-Haramain suit involves an allegation of illegal surveillance against specific individuals, it seemed to be more promising than similar lawsuits filed by the ALCU and the Center for Constitutional Rights, which had to rely on somewhat novel arguments to establish standing (though the ACLU won this argument at the district court level, a divided Sixth Circuit panel eventually dismissed that case for lack of standing). Unfortunately, the government confiscated the document the Al-Haramain plaintiffs were relying on to establish standing, asserting that it and the entire subject of the lawsuit were state secrets. The district court agreed that the document was a state secret and refused to allow the plaintiffs to rely on it. It did, however, allow the attorneys who had seen the document to submit affidavits under seal recounting their memories of it. That decision was appealed to the Ninth Circuit.

Today a unanimous panel of the Ninth Circuit rejected the district court's split-the-baby approach and sided with government. Having reviewed the inadvertently disclosed document in camera, the judges concluded that it was indeed a protected state secret. Commenting on the district court's compromise solution, they noted that it "suffers from a worst of both world's deficiency: either the memory is wholly accurate, in which case the approach is tantamount to release of the document itself, or the memory is inaccurate, in which case the court is not well-served and the disclosure may be even more problematic from a security standpoint." The panel held that neither the document nor any descriptions of it could be used as evidence in the case.

The Court then noted the conundrum:

Al-Haramain cannot establish that it suffered injury in fact, a "concrete and particularized" injury, because the Sealed Document, which Al-Haramain alleges proves that its members were unlawfully surveilled, is protected by the state secrets doctrine.

Unable to rely on the document, either directly or indirectly, the Al-Haramain plaintiffs cannot establish standing to sue.

A number of right wing blogs are describing this as a big win for the Bush administration, but it seems like much more of a mixed bag. What's interesting is that after concluding that the plaintiffs lacked standing, the Court did not take the obvious next step and dismiss the case. Instead, the panel went out of its way to suggest a possible way around the state secrets conundrum and remanded the case back to the district court for further consideration. At the very end of the opinion, the Court wrote:

Under FISA . . . if an "aggrieved person" requests discovery of materials relating to electronic surveillance, and the Attorney General files an affidavit stating that the disclosure of such information would harm the national security of the United States, a district court may review in camera and ex parte the materials "as may be necessary to determine whether the surveillance of the aggrieved person was lawfully authorized and conducted." 50 U.S.C. 106(f). The statute further provides that the court may disclose to the aggrieved person, using protective orders, portions of the materials "where such disclosure is necessary to make an accurate determination of the legality of the surveillance." Id. The statute, unlike the common law state secrets privilege, provides a detailed regime to determine whether surveillance "was lawfully authorized and conducted." Id.

As an alternative argument, Al-Haramain posits that FISA preempts the state secrets privilege. The district court chose not to rule on this issue. . . . Now, however, the FISA issue remains central to Al-Haramain's ability to proceed with this lawsuit. Rather than consider the issue for the first time on appeal, we remand to the district court to consider whether FISA preempts the state secrets privilege for any proceedings collateral to that determination.

This is basically the court saying "hint, hint, why don't you try this other argument instead; we like it better." It's an unusual step. And the argument itself is quite interesting. Essentially, the Court is suggesting that FISA provides a statutory procedure for handing these sorts of situations and that specific statutory language generally trumps common law doctrine. The question then would be whether the state secrets doctrine is just a matter of federal common law (which can be preempted by statute) or whether it is somehow constitutional in origin.

Though I've never considered this argument before today, it strikes me as fairly compelling, at least at first glance. If the procedure laid out in FISA is inconsistent with the state secrets doctrine, which is just a judge-made doctrine anyway, the statute really should govern. This issue will undoubtedly be briefed and argued before the district court, and it will be interesting to see how it turns out. If the district court finds it compelling, this may prove to be a rather Pyrrhic victory for the government.