In rejecting a key element of a legal challenge to the government's warrantless wiretapping program, federal appellate judges on Friday demonstrated once again the willingness of U.S. courts to give the Bush administration considerable latitude in handling the war on terror.
The U.S. 9th Circuit Court of Appeals in San Francisco, by a 3-0 vote, barred an Islamic charity from using a confidential government document to prove that it had been illegally spied upon, agreeing with the administration that disclosure would reveal "state secrets."
The lawsuit, filed by Al-Haramain Islamic Foundation and two of its attorneys, challenged the National Security Agency's spying endeavor, the Terrorist Surveillance Program, launched after the Sept. 11, 2001, terrorist attacks. The U.N. Security Council has declared that Al-Haramain, which operates in more than 50 countries, belongs to or is associated with Al Qaeda.
The suit was one of 50 legal challenges brought across the country after the program's existence was revealed in the New York Times.
Other courts have shown similar deference to the Bush administration on the state secrets privilege, which permits the government to bar disclosure in court of information if "there is a reasonable danger" it would affect national security.
But the ruling in this case was particularly striking because it came from a panel of three liberal jurists, all appointed by Democratic presidents.
Moreover, the charity, unlike other plaintiffs, says it has evidence of surveillance -- a call log from the National Security Agency that the government inadvertently turned over in another proceeding.
In the ruling, Judge M. Margaret McKeown wrote that the judges accepted "the need to defer to the executive on matters of foreign and national security and surely cannot legitimately find ourselves second-guessing the executive in this arena."
Erwin Chemerinsky, a liberal constitutional law professor at Duke University law school, said the court showed "how much deference even a liberal panel of judges is willing to give the executive branch in situations like this, and I find that very troubling."
Doug Kmiec, a conservative constitutional law professor at Pepperdine law school, said "the opinion is consistent with" a ruling by the federal appeals court in Cincinnati earlier this year striking down a challenge to the surveillance filed by the American Civil Liberties Union.
