A federal appeals court in San Francisco on Friday handed a major victory to the Bush administration, ruling that a lawsuit challenging the government’s warrantless wiretapping program could not go forward because of the “state secrets” privilege.
In a 3-0 decision, the 9th U.S. Circuit Court of Appeals sided with the government, which had argued that allowing an Islamic charity’s claims that it was illegally spied upon to go forward would threaten national security.
In the opinion, Judge M. Margaret McKeown flatly rejected the government’s argument that “the very subject matter of the litigation is a state secret.”
However, after privately reviewing sealed information from the government, McKeown said on behalf of the three-judge panel, “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 victory was not absolute. The court sent the case back to a lower court to consider whether the Foreign Intelligence Surveillance Act, which requires the government to seek warrants for anti-terrorist wiretaps from a special court, pre-empts the state secrets privilege. The proceedings on that issue could take months.
But coming from three judges, all appointed by Democratic presidents, in one of the most liberal federal circuits in the country, the ruling demonstrates a reluctance by the courts to intervene in President Bush’s handling of the war on terrorism.
The lawsuit, filed by the Al-Haramain Islamic Foundation and two of its attorneys, challenged the National Security Agency’s spying endeavor, called the Terrorist Surveillance Program, which was launched after the Sept. 11, 2001, terrorist attacks.