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9th Circuit Applies State Secrets Privilege in Wiretap Case

Posted Nov 16, 2007 2:43 PM CDT
By Martha Neil

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In a ruling seen as a victory for the Bush administration, a federal appeals court has said that a warrantless wiretap case brought against the government by an Islamic charity cannot proceed, at least for now, because of the national security issues it raises.

The three-judge appellate panel rejected the government's argument that "the very subject matter of the litigation is a state secret," pointing out that the Terrorist Surveillance Program at issue has been publicly discussed by the White House, according to the Los Angeles Times. However, it voted unanimously, after reviewing secret material in chambers, that the case cannot proceed based on a confidential surveillance log that was inadvertently produced by the government, because the state secrets privilege still applies to this document.

"We acknowledge the need to defer to the executive on matters of foreign and national security and surely cannot legitimately find ourselves second-guessing the executive in this arena," the panel explains in its written opinion (PDF).

As the newspaper notes, however, the government's victory wasn't absolute since the case is not finally dismissed. The 9th Circuit remanded it back to the trial court for a determination of whether the state secrets privilege is pre-empted by the Foreign Intelligence Surveillance Act's requirement that the government seek wiretapping warrants in anti-terrorism cases from a special court.

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