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    Both Government and Islamic Charity Claim Victory in Eavesdropping Case
    By Dan Eggen
    The Washington Post

    Saturday 17 November 2007

    A federal appeals panel in California ruled yesterday that an Islamic charity that is suing the government cannot refer to a classified document that shows it was a target of warrantless surveillance, even though the material was accidentally released by the Treasury Department.

    However, the three-judge panel of the U.S. Court of Appeals for the 9th Circuit in San Francisco allowed the lawsuit by the al-Haramain Islamic Foundation to go forward on other grounds. It also rejected the Bush administration's argument that the government's now-defunct Terrorist Surveillance Program was entirely protected by a state secrets claim, a ruling that could pose problems for the government in related cases.

    The complex 29-page decision, which prompted claims of victory from both the Justice Department and the charity's lawyers, ensures that one of the main lawsuits against the government's warrantless eavesdropping program will stay alive, at least for now.

    "We are not unhappy about this," said Jon B. Eisenberg, an Oakland, Calif., lawyer who represents al-Haramain. "It means that the 9th Circuit has said to the district court, 'Go back to the drawing board and decide the real issue in the case.'"

    The lawsuit is one of about 50 challenges in federal courts to the legality of the surveillance program, under which the National Security Agency monitored communications between the United States and overseas without warrants if one of the targets was believed to be linked to al-Qaeda or its affiliates. Most of the litigation is against AT&T and other telecommunications companies, which are accused by various plaintiffs of aiding the government in illegal surveillance. Congress is debating whether to grant those companies immunity from such lawsuits.

    But in the case of the Oregon-based arm of al-Haramain, which was labeled a terrorist organization and shut down by the Bush administration in 2004, the group is suing the government itself, alleging that it was the target of illegal spying.

    One of the charity's most compelling pieces of evidence came to them by mistake, when the Treasury Department inadvertently turned over a top-secret calling log prepared during a proceeding to freeze the group's assets. The charity's lawyers returned the log voluntarily, but a lower-court judge in Oregon ruled that they could rely on their memories to refer to the document's contents as part of the litigation.

    While calling that approach a "commendable effort to thread the needle," the appeals court said the ruling was contrary to the state secrets privilege, which prohibits disclosure of information in court that could harm national security.

    "Such an approach countenances a back door around the privilege and would eviscerate the state secret itself," the court said. "Once properly invoked and judicially blessed, the state secrets privilege is not a halfway proposition."

    Justice Department spokesman Brian Roehrkasse hailed the decision because it agrees with the government's position that release of the classified log would harm intelligence-gathering and national security.

    Eisenberg said the ruling does not undermine one of the main arguments in the lawsuit that has yet to be decided: whether provisions of the Foreign Intelligence Surveillance Act would allow the litigation to proceed by allowing the courts to use special proceedings to hear and weigh classified evidence.

    Eisenberg praised the appellate court for rejecting the administration's assertion that the warrantless surveillance program, whose existence has been confirmed by the president, is covered by secrecy protections. "In light of extensive government disclosures ... the government is hard-pressed to sustain its claim that the very subject matter of the litigation is a state secret," the court wrote.