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.