Posted on 11/16/2007 2:09:43 PM PST by Dog
In this opinion just released this morning, three Judges of the Ninth Circuit, including one of the most liberal anti-government judges in the Country, Harry Pregerson, sided with the Administration on its asserting of the “State Secrets” privilege in a lawsuit brought by Islamic groups and others against both the government. and the telecommunication companies that helped put in place the terrorist surveillance program that involved the use of warrantless wiretaps.
The court first ruled that the existence of the program was no longer a state secret because the Admin. confirmed its existence and some of its details following the exposure of the program in the NYT. Thus, the Admin. could not now seek to stop the civil suit on the basis that it would be forced to confirm a “state secret” by even acknowledging the existence of the program.
But, the Admin. also invoked the privilege against the plaintiff because litigating the suit would require disclosure to the plaintiff of information (a ”sealed document”) he needed to pursue his action, but which was classified and a “state secret.”
As the court noted, this line of authority goes back to espionage cases following the Civil War where spies hired by the Union sought to recover damages relating to the agreement. The Supreme Court denied the suit on the basis that the agrement itself was secret, and that secrecy precludes any court action to enforce its terms.
In this case the Court held that the government had properly invoked the State Secrets privilege with respect to document(s) and information which the plaintiffs would need to proceed – such as confirmation that the plaintiffs had been the target of the Terrorist Surveillance Program and the details of how the program operated.
Money quote from p. 22 of the pdf:
“Having reviewed it in camera, we conclude that the Sealed Document is protected by the state secrets privilege, along with the information as to whether the government surveilled Al-Haramain. We take very seriously our obligation to review the documents with a very careful, indeed a skeptical, and not to accept at face value the government’s claim or justification of privilege. 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. Sufficient detail must be—and has been—provided for us to make a meaningful examination. The process of in camera review ineluctably places the court in a role that runs contrary to our fundamental principle of a transparent judicial system. It also places on the court a special burden to assure itself that 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.
Hard to find a place in there anywhere for a “Bush/Cheney are worse than Hitler” jibe.
Update: I incorrectly reported above that the Court had also ruled in the Gov’t favor in the Hepting case against various telecommunications companies. That appears not to have been the case even though the cases had been consolidated on appeal. In a separate order the Court ordered that the cases no longer be joined, and issued no decision on the merits in the Hepting case. That case remains pending.
The three Judges were appointed by Carter and Clinton. Decision was 3-0....in favor of the government.
Wow
I’ve been pleasantly surprised with the 9th Circuit lately.
WOW! This IS hugh, coming from the 9th Circus!!
The 9th circuit just realized what would happen to porn producers and gay rights activists if the Mullahs take over in America.
Wake up DoughtyOne, wake up DoughtyOne, you’re having a terrible nightmare. Wake up Doughtyone...
Sorry, but I have such a hard time thinking the Ninth Circuit Court could ever get one right, that it seems like a horrible nightmare I’ll find out was false when I wake up, when they actually do.
LOL You are probably right.
Feel the same way.
Sure is a shame.
Uh, so we have “one of the most liberal antigovernment judges” reviewing sensitive terrorist related documents? Is that the case? Does anyone else sense a problem with that?
Excellent news.
Just WOW! I’m shocked. This from the 9th!
I caught some of the 9th Circuit oral argument in this case on CSPAN one day, and I must say, the government lawyer who argued the state secrets part of the case was absolutely outstanding. The Court came across as reluctant to agree with him, but willing to do so if that’s where the analysis led. I don’t know the government lawyer’s name, but he was really, really, really good.
Maybe the next president (presuming they're GOP) should look at him for Solicitor General or White House Counsel.
GRRRREAT news! Thanks for posting. The 3 judges better watch out for a fatwa ruling against them.
Thanks for those comments. It’s quite appearant when someone knows what they’re talking about, and it’s fun to watch them lay it out. What’s sad is when someone knows their stuff, but can’t lay it out so others can understand and agree. Just knowing your stuff isn’t good enough some times.
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