In yet another failure of an appellate court to check the excessive use of the military and state secrets privilege, the Ninth Circuit has ruled that Al-Haramain cannot use a critical piece of evidence that was inadvertently disclosed to it — evidence showing potentially serious violations by the government. The panel ruled unanimously that a top secret call log accidentally turned over to the now-defunct charity’s lawyers cannot be used as evidence. To allow such use, would according to Judge M. Margaret McKeown, ”countenance[] a back door around the privilege and would eviscerate the state secret itself.”
It is a very disturbing decision, though the court did remand to determine the extent to which the statute (FISA) trumped the common law privilege. I was counsel in the Area 51 case (Frost and Kasza) before this same court on this issue. We won the case on the law but were denied evidence that we sought under the privilege. It is a fundamental principle of law that common law doctrines are trumped by a statute in a direct conflict. This could be a serious problem for the government on remand. The Bush Administration has used the privilege is an unprecedented fashion. In cases like El-Masri, it has been able to force dismissals by using the privilege as a tactical device. The court simply go along with these excessive assertions because they are either too lazy or too timid to confront the government. Yet, if FISA was violated, the privilege is being used to prevent judicial review of the violation and the enforcement of the statute. Ultimately, the most important question is why the Democratic Congress has remained so silent about the abuse of the privilege and the use of ex parte communications. As indicated by the 9th Circuit, they could statutorily guarantee that a court can hear these cases. They clearly do not want that any more than the President.
This is crazy making! I would invoke the “Cat’s Outta the Bag Rule”.
Why else was everyone in the courtroom but for the fact that the secret info is no longer secret, yet is being suppressed because a (fraudulent) argument was made to slide it back under the secrecy rule?
And who decided that, ultimately? The government or the judge? Isn’t that one of the standards of review?
“…The court held that only the government can claim or waive the privilege, and it “is not to be lightly invoked”, and last there “must be a formal claim of privilege, lodged by the head of the department which has control over the matter, after actual personal consideration by that officer.”[1] The court stressed that the decision to withhold evidence is to be made by the presiding judge and not the executive.[1]”
How can critical evidence alleged to have been obtained, illegally, be suppressed in an action that is based on rights violations induced by the illegal activities employed in gathering such information?
As an officer of the court is the judge not responsible for overseeing the “discovery” of this secret info? If so, how can he/she then rule to withhold that same information.
And of course to add to our banquet of disappointing recent decisions by the varying circuits, was the 6th’s handling of the ACLU v NSA case.
There was a marvelous if malign circularity to the 6th Circuit’s ruling. In essence to have standing to seek remedy, the party must prove injury, but because of the state secrets privilege, the required evidence cannot, in principle, ever be obtained so no one has standing!
The opinion:
“The plaintiffs do not, and cannot, assert that any of their own communications have ever been intercepted. Instead, they allege only a belief that their communications are being intercepted, based on their own assessment of their overseas contacts as people who are likely to fall within the NSA’s broad, public description of its targets. As acknowledged by plaintiffs’ counsel at oral argument, it would be unprecedented for this court to find standing for plaintiffs to litigate a Fourth Amendment cause of action without any evidence that the plaintiffs themselves have been subjected to an illegal search or seizure. See Rakas, 439 U.S. at 133-34.
. . .
VI.
We hold that the plaintiffs do not have standing to assert their claims in federal court. Accordingly, we VACATE the order of the district court and REMAND this case to the district court with instructions to DISMISS for lack of jurisdiction.”
In Al-Haramain, the evidence was there, but inadmissable..
Professor Turley is right…where’s Congress?
I agree that this is a very disturbing decision, because it leaves arbitrary, unreviewed power in the hands of whoever is in authority at the moment. It is an essential violation of the right to be secure against unreasonable searches.