Program Materials
Prepared for the ABA SIL 2008 Spring Meeting’s Panel Discussion:
The NSA’s Warrantless Surveillance Program:
A New Era in American Intelligence-Gathering?
Wednesday, April 2, 2008 @10:30 am
New York City Grand Hyatt
CASE BRIEF
AL-HARAMAIN ISLAMIC FOUNDATION, INC., ET AL
V.
GEORGE W. BUSH, PRESIDENT OF THE UNITED STATES, ET AL
By John H. Harrington*
I. Background
President Bush established the Terrorist Surveillance Program (TSP) following
September 11, 2001, which authorized warrantless wiretapping by the executive agencies
of electronic communications between “people with known links to Al Qaeda and related
terrorist organizations.”1 The Al-Haramain Islamic Foundation (Al Haramain), a Saudibased non-profit organization with offices in Oregon, had been designated a terrorist
organization for its alleged financial support of Islamic rebels in Chechnya, when it
claims it was investigated under TSP auspices. Following the investigation, which AlHaramain alleges included the TSP-intercepted calls, the Treasury Department froze the
organization’s assets and commenced forfeiture proceedings. During an August 2004
civil designation proceeding, Al-Haramain counsel and directors were disclosed Treasury
Department documents labeled “Top Secret,” along with unclassified material. These
documents were presumably “logs of communications” between Al-Haramain directors
and lawyers referred to in the complaint.2 The FBI had retrieved all copies of the
classified document in October 2004 from counsel for the organization.
The FBI,
however, never sought return of the classified documents from Al-Haramain’s directors.
II. Procedural Posture
Al-Haramain and two lawyers, Wendell Belew and Asim Ghafoor, brought suit
against the government for injunctive and other relief, naming the US President, the NSA
and the NSA Director, the Department of Treasury Office of Foreign Assets Control and
the director of that office, the FBI, and the FBI director as defendants. The complaint,
dated February 28, 2006, was brought in U.S. Federal Court, District of Oregon, claiming
the TSP’s warrantless electronic surveillance violated the Foreign Intelligence
Surveillance Act, 50 U.S.C. §§ 1801, et seq. (“FISA”), First and Sixth Amendments of
the U.S. Constitution, the doctrine of Separation of Powers and International Covenant of
*John Harrington is Vice-Chair of the SIL National Security Committee, and editor, author and co-author
of numerous committee year-in-review articles since 2000 covering arms control and national security. In
this forum, he has written extensively on the Nuclear Nonproliferation Treaty, space weaponization and on
various legal developments following the terrorist attacks of September 11, 2001. Attorney Harrington is
in private practice in Stratford, Connecticut.
1
George W. Bush, President’s Radio Address (Dec. 17, 2005),
http://www.whitehouse.gov/news/releases/2005/12/20051217.html
2
Plaintiffs’ Complaint, Paragraphs 19-20. http://www.usnews.com/usnews/news/graphics/motion.pdf
Civil and Political Rights. The organization sought damages and declaratory relief,
alleging that the government engaged in the wiretapping without probable cause,
warrants, or other prior authorization. Al-Haramain sought to enjoin the government in
the use of information obtained through the TSP in its asset forfeiture case, while its
attorneys are seeking compensation for “chilled” business relations alleged to have
resulted from the investigation. The plaintiffs also provided a sealed copy of the Top
Secret disclosure to the district court (hereinafter referred to as the “Sealed Document.”)
The administration moved to dismiss the case, or in the alternative, for summary
judgment, on the basis of the State Secret privilege. The government claimed the very
subject matter of the suit was a state secret, arguing that the litigation would require the
disclosure of information which could cause grave damage to national security. Further,
the government moved to block Plaintiff from all access to the Sealed Document, saying
“. . . it is not possible to describe the document in a meaningful manner without revealing
classified information, including classified sources and methods of intelligence.”3
The Oregon District Court denied Defendants’ motion to dismiss, finding the
existence of the TSP was not a secret, due to its public acknowledgement of same, and
that “no harm to the national security would occur if plaintiffs are able to prove the
general point that they were subject to surveillance as revealed in the Sealed Document,
without publicly disclosing any other information contained in the Sealed Document.”4
The court, meanwhile, found the Defendants met the procedural burdens of claiming the
privilege, and granted their motion to bar Plaintiffs from accessing the Sealed Document
upon deeming it a state secret. The court thereupon attached a caveat to this ruling,
however, allowing Plaintiffs’ witnesses to file in camera affidavits attesting from
memory to the contents of the document to support Al-Haramain’s assertion of standing
and its prima facie case.5
The legality of this caveat was referred for further
determination, which is the subject matter of this brief.
The District Court sua sponte certified its order for interlocutory appeal, and the
case was transferred to the Northern District of California, whereupon the Ninth Circuit
3
John F. Hackett, Director of the Information Management Office of the Office of the Director of National
Intelligence, asserted May 12, 2006.
4
Al-Haramain Islamic Foundation, Inc. v. Bush, 451 F. Supp. 2d 1215, 1224 (D. Or. 2006).
5
Id. at 1229.
Court of Appeals granted interlocutory de novo review (briefly consolidated with
Hepting v. AT&T Corp., Nos. 06-17132, 06-17137). The circuit court rendered the
opinion discussed herein.
Following this court’s opinion, Plaintiffs Al-Haramain, et al, appealed to the U.S.
Supreme Court, but were denied certiorari on Feb 19, 2008.
III. Applicable Law
Common Law State Secrets Privilege
Totten v. United States, 92 U.S. 105 (1875)
United States v. Reynolds, 345 U.S. 1, 10 (1953)
Tenet v. Doe, 544 U.S. 1 (2005)
Foreign Intelligence Surveillance Act, 50 U.S.C. §§ 1801, et seq. (FISA)
Standing
Preemption
IV. Questions Presented
Brief Answer
A. How is the state secret privilege defined and applied?
Two Forms
B. Is the subject matter (TSP) a state secret?
No.
C. Is the sealed document a state secret?
Yes.
D. Absent the sealed document, can Al Haramain establish standing? No.
E. Does FISA preempt the state secret privilege, thereby providing
in camera inquiry as to the legality of the surveillance?
Remanded
V. Discussion
A. The court first analyzed the state secret privilege and recognized twin theories
under which the privilege may be asserted: (1) Non-justiciability and (2) a privilege that
may bar proof of a prima facie case. (Opinion, pp. 14967-68)
The first form of the privilege arose in Totten v. United States, 92 U.S. 105
(1875), which involved the nonjusticiability of certain state secrets cases. The Totten
court applied the privilege where spying services were rendered to the government
pursuant to a secret contract which was the subject matter of the lawsuit. “It may be
stated as a general principle, that public policy forbids the maintenance of any suit in a
court of justice, the trial of which would inevitably lead to the disclosure of matters
which the law itself regards as confidential, and respecting which it will not allow the
confidence to be violated.” Id. at 107.
The second application of the privilege manifests in the case evidence. United
States v. Reynolds, 345 U.S. 1, 10 (1953). The District Court followed a case evolution,
including other circuit opinions, “into the principle that where the very subject matter of a
lawsuit is a matter of state secret, the action must be dismissed without reaching the
question of evidence . . . Dismissal is proper if ‘sensitive military secrets will be so
central to the subject matter of the litigation that any attempt to proceed will threaten
disclosure of the privileged matters.’ ” (Opinion, p. 14967).
Following the foregoing analysis, the Court takes on the government’s claim that
the subject matter of the suit, the TSP program, is a state secret. Here, the Ninth Circuit
agreed with the District Court’s analysis that “the government had lifted the veil of
secrecy on the existence of the [TSP] and plaintiffs only seek to establish whether
interception of their communications was unlawful.” (Opinion, p. 14969). The court
discussed at length numerous instances of government acknowledgement of the TSP,
including remarks by President Bush in his weekly radio address on December 17, 2005
(FN 1), and also Al-Haramain’s public classification as a “Specially Designated Global
Terrorist.” The court contrasted case precedence wherein there was reliance upon the
existence of privileged information as its underlying factual foundation.
The opinion noted that “subject matter” must be viewed in the face of the specific
facts alleged and the scope of the lawsuit. Contrast this with El Masri v. United States,
479 F.3d 296, 302 (4th Cir. 2007), where the much publicized extraordinary rendition
program, while no longer a secret, nevertheless foreclosed the lawsuit because the public
information did not include facts that {were} central to litigating the action.” Id. at 311
(Opinion, p. 14975). The court noted that the subject matter of the lawsuit, and the
information necessary to establish a prima facie case, are sometimes separated by a bright
line requiring this analysis of the issue as a separate threshold determination. In this case,
the court sided with the Plaintiff.
B. The Court applied a three-step analysis of the Sealed Document to determine
whether it was subject to the state secret privilege asserted by the government. (1)
ascertaining the procedural requirements have been satisfied; (2) make an independent
determination whether the information is privileged; and (3) the ultimate question to be
resolved is how the matter should proceed in light of the successful privilege claim.
The court found the government made a “formal claim of privilege, lodged by the
head of the department which has control over the matter, after actual personal
consideration by that officer,” (Opinion, p. 14976) thereby satisfying the first test.
The Circuit Court then found the Sealed Document to be privileged. The court
found that, despite the government’s earlier disclosure, the government has neither
confirmed nor denied the contents, which remain a secret. Further, the government had
not waived its right to claim the privilege when it revealed the document. The court
thereupon revealed its de novo review in camera of the Sealed Document, and found “the
means, sources and methods of intelligence gathering in the context of this case would
undermine the government’s intelligence capabilities and compromise national security.”
(Opinion, p. 14980).
During the third step, the Circuit Court found error. “After correctly determining
that the Sealed Document was protected by the state secrets privilege, . . . the court
permitted the Al-Haramain plaintiffs to file in camera affidavits attesting to the contents
of the document from their memories. . . [This] approach is contrary to established
Supreme Court precedent. If information is found to be a privileged state secret, there are
only two ways that litigation can proceed: (1) if the plaintiffs can prove “the essential
facts” of their claims without resort to material touching upon military secrets, or (2) in
accord with the procedure outlined in FISA.” (Opinion, p. 14980). The court stressed
that there exist procedural safeguards which much be satisfied before a FISA-permitted in
camera review can take place, which does not include the affidavits sought by Plaintiffs.
The court found the District Court’s idea was flawed as being an end run around the State
Secrets privilege.
C. The Ninth Circuit Court applied the test for standing found in Lujan v.
Defenders of Wildlife, 504 U.S. 555 (1992), and found that Al-Haramain cannot establish
that it suffered an injury in fact (“concrete or particularized”) because it acknowledged in
oral argument that there was no alternative offer of proof to the Sealed Document, which
it already found is protected by the state secrets privilege. The Court noted, however,
that FISA, if found to preempt the privilege, would provide for in camera review of the
Sealed Document.
D. Finally, the court remanded the question of FISA preemption over the state
secret privilege, since the District Court had declined to do so prior to the interlocutory
appeal. If FISA is applicable here, then the 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. (Opinion, p. 14983, citing 50
U.S.C. §1806(f).
VI. Conclusion
The Ninth Circuit rendered a decision in favor of the government’s position, prohibiting
in camera witness affidavits concerning their memory of the contents of the Sealed
Document. The Circuit Court has remanded the case back to the District Court to ponder
whether the congressionally-authorized FISA preempts the common law state secrets
privilege. The answer to this question may determine whether Plaintiff can make its
prima facie case by admitting the Sealed Document in camera, and thereby had standing
to sue the government.