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Advocacy Blog
Friday, November 16, 2007
Decision in Al-Haramain Case: State Secrets Privilege Does Not Bar Lawsuit Entirely
The Ninth Circuit has issued an opinion in Al-Haramain Islamic Foundation v. Bush, returning the case to the District Court for further consideration. Al-Haramain, sued the government after receiving a document proving the Islamic charity was subject to warrantless surveillance. The government asserted the case should be dismissed based on the state secret privilege. The Ninth Circuit ruled that the subject matter of the case itself was not a state secret, but the document remains a state secret. The case will now return to the lower court to determine whether the Foreign Intelligence Surveillance Act (FISA) law preempted the state secrets privilege.
Interestingly the LA Times considered the ruling a victory for the Bush administration. Yes, the document was ruled a state secret, but the program itself was not, sending the case back to the district court.
The opinion states; "The court held that the Sealed Document was protected by the state secrets privilege and that its inadvertent disclosure did not alter its privileged nature, but decided that Al-Haramain would be permitted to file in camera affidavits attesting to the contents of the document based on the memories of lawyers who had received copies. . . . Nonetheless, our resolution of the state secrets issue as applied to the Sealed Document does not conclude the litigation."
Posted by Amanda Adams
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