NYT : Ruling Blocks Challenge to Wiretapping

Ruling Blocks Challenge to Wiretapping

By ERIC LICHTBLAU | November 16, 2007

WASHINGTON, Nov. 16 — A federal appeals court said today that secrecy laws forced it to exclude critical evidence about the National Security Agency’s domestic eavesdropping program from being used by an Islamic charity in a lawsuit even though the mere existence of the program could no longer be considered a “state secret.”

The complex ruling was a victory for the Bush administration and signaled trouble for civil rights groups that are trying to show that the eavesdropping program was unconstitutional and to hold telecommunications companies liable for carrying it out.

The Al-Haramain Islamic Foundation, a charity in Oregon, had perhaps the best evidence of anyone that it had been a target of the wiretapping program, based on a top secret document mistakenly given to the group in 2004.

But the ruling by the United States Court of Appeals for the Ninth Circuit, based in San Francisco, found that evidence about the document could not be introduced in court because it fell under the “state secrets” privilege invoked by the government. The court, reversing a lower court ruling, said the trial judge had made “a commendable effort to thread the needle” but that its final ruling in allowing the evidence was flawed.

However, the appeals court split off from its ruling a separate claim made by more than 40 groups against the telecommunications companies, and it has yet to rule on whether those lawsuits were covered by the state secrets privilege as well.

A lawyer for the group leading that part of the lawsuit, the Electronic Frontier Foundation, said in an interview that he was heartened by the appeals court’s clear rejection of the government’s claim everything involved in the eavesdropping program should be considered a state secret. That could bode well for the remaining piece of the case, said the lawyer, Kevin Bankston.

Indeed, the appeals court spent most of its 27-page ruling explaining why the eavesdropping program should not be considered a state secret. It listed numerous public statements, including those by President Bush, former attorney general Alberto R. Gonzales, and the director of the Central Intelligence Agency, Michael V. Hayden, about details of the program. And it said: “In light of extensive government disclosures” about the Terrorist Surveillance Program, “the government is hard-pressed to sustain its claim that the very subject matter of the litigation is a state secret.”

The judges on the panel were M. Margaret McKeown, Michael Daly Hawkins and Harry Pregerson. Judges McKeown and Hawkins were nominated by President Bill Clinton, which Judge Pregerson was a nominee of President Jimmy Carter.

In presenting the charity case before the lower court, its lawyers had also argued that warrantless eavesdropping of telephone conversations between its directors and lawyers violated the Foreign Intelligence Surveillance Act, which established a secret court to issue top secret surveillance warrants authorized by a judge, The Associated Press reported.

Today, the appeals court did keep the charity’s lawsuit alive, if barely, by sending the lawsuit back to a trial court in Portland, Ore., to determine if that law governing the wiretapping of suspected terrorists trumps the state secrets law.

The appeals court said that “the F.I.S.A. issue remains central to Al-Haramain’s ability to proceed with this lawsuit.”