SAN FRANCISCO – The U.S. Court of Appeals for the Ninth Circuit ruled today that a charity that sued President Bush for engaging in unconstitutional surveillance can pursue its case in court. The Bush administration had asked the appellate court to dismiss the suit on the grounds that the very subject matter of the litigation – the National Security Agency's warrantless wiretapping program – was a state secret.  The Ninth Circuit rejected this argument, noting that the government had publicly acknowledged the surveillance program and that senior officials had discussed the program in press conferences and statements.  The court did, however, find that an inadvertently disclosed document indicating that the charity had been the target of surveillance was properly protected by the state secrets privilege, and returned the case back to the district court to determine whether the 1978 Foreign Intelligence Surveillance Act preempts the state secrets privilege in this context.

The following can be attributed to Jameel Jaffer, Director of the American Civil Liberties Union’s National Security Project and counsel to the plaintiffs in ACLU v. NSA, in which a request for review is pending before the Supreme Court:

"As the court properly recognized, the government should not be permitted to shut down litigation simply by asserting that a case implicates state secrets.  In the al-Haramain case and many others, it's clear that the executive branch is using the state secrets privilege not to protect legitimate national security information but to shield the government and its agents from accountability for systemic violations of the Constitution.  A state secrets privilege that operates in this way serves neither national security nor the country's broader interest in the rule of law."

The following can be attributed to Ann Brick, a staff attorney with the ACLU of Northern California and counsel in two U.S. District Court cases in the Northern District of California involving state secrets claims by the government:  Riordan v. Verizon Communications, Inc., which challenges Verizon's turnover of customer call records to the NSA, and Mohamed v. Jeppesen Dataplan, Inc., which challenges the practice of "extraordinary rendition": 

"The Bush administration's ever-increasing use of the state secrets privilege to thwart holding it accountable for its illegal conduct remains deeply troubling. We see it in the al-Harmain case, where the administration has baldly admitted that it acted in utter disregard of the Foreign Intelligence Surveillance Act and we see it in the administration’s use of the privilege to avoid judicial scrutiny of violations of basic human rights on questions of torture and rendition.  The courts have an important role to play in all of these cases and it is very significant that the Ninth Circuit sent the al-Haramain case back to the district court for a determination of whether FISA trumps the common law state secrets privilege."