A three-judge panel for the US Court of Appeals for the Ninth Circuit in San Francisco Feb. 27 denied an appeal by the Department of Justice seeking to stop a lawsuit [2] brought by an Islamic charity alleging it was the subject of an illegal wiretap by the National Security Agency (NSA [3]). The denial upholds last month's ruling [4] by US District Judge Vaughn Walker allowing the case brought by the al-Haramain Islamic Foundation [5] to go forward.
At the heart of the appeal was the Obama administration's fight to keep secret a classified document, a call log which allegedly shows the foundation had been wiretapped. The call log had been deemed a state secret [6], but Vaughn's decision had ordered the government to allow the foundation to view the document. The Justice Departmnet had argued that allowing the lawsuit to proceed would jeopardize national security. While the denial of the appeal appears to grant al-Haramain's lawyers access, the DoJ argued in a filing just hours after the appeals court ruling that the original order has no authority.
The document was accidentally released to al-Haramain in 2004 during the DoJ's investigation which ultimately lead to the foundation being classified as a terrorist organization. The original lawsuit, filed by the foundation in February 2006, alleged that the NSA illegally taped several conversations between the charity and its lawyers. Walker had previously dismissed the suit [7], finding that al-Haramain lacked a cause of action because the state secrets privilege trumped procedural requirements under the Foreign Intelligence Surveillance Act (FISA). (Jurist [8], Feb. 28)
See our last post on surveillance state [9].
