ATTORNEYS FOR VICTIMS OF NSA WARRANTLESS WIRETAPPING WELCOME THE NINTH CIRCUIT’S REFUSAL TO DISMISS CHALLENGE TO ILLEGAL PROGRAM

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ATTORNEYS FOR VICTIMS OF NSA WARRANTLESS WIRETAPPING WELCOME THE NINTH CIRCUIT’S REFUSAL TO DISMISS CHALLENGE TO ILLEGAL PROGRAM


Portland, OR Al-Haramain Islamic Foundation and two of its attorneys who were victims of the Bush Administration’s NSA warrantless wiretap program welcome the U.S. Court of Appeals for the Ninth Circuit’s refusal to dismiss a challenge to that program in a decision issued on November 16th. When the lawsuit was filed in February 2006, the plaintiffs filed an inadvertently-disclosed classified document which they allege proves they were subject to the wiretapping program. The government filed a motion to dismiss the lawsuit arguing, in part, that the very subject matter of the lawsuit was a state secret. The government’s motion was denied by the trial court and that ruling was affirmed by the Court of Appeals holding that the “extensive government disclosures” regarding the wiretapping program render the Bush Administration “hard-pressed to sustain its claim that the very subject matter of the litigation is a state secret.” The Court recognized the inconsistency between the government’s public campaign to convince the American public of the program’s legality and its legal position that any judicial examination to determine the legality of the program would endanger national security.

The Court did agree with the government that the document filed by the plaintiffs was subject to the state secrets privilege and that plaintiffs could not refer to it in their filings. However, plaintiffs had argued that independent of the state secrets privilege, the Foreign Intelligence Surveillance Act (FISA) allowed the court to consider the classified document, and the Court of Appeals remanded the case to the trial court to decide that issue. The Court wrote that “the FISA issue remains central to Al-Haramain’s ability to proceed with this lawsuit.” AHIF attorney Ashlee Albies agrees: “We’re confident that when the district court examines this issue, it will find that Congress, through FISA, has adequately equipped the judiciary to deal with sensitive surveillance information, and specifically with the document, in this case.”

“The role of the courts to restore constitutional equilibrium becomes all the more essential where the administration has blatantly flouted the laws of Congress. This case is very much alive, and we look forward to a judicial determination as to the legality of this program,” said AHIF attorney Steven Goldberg.