My latest FindLaw column discusses Friday's Ninth Circuit ruling in Al-Haramain Islamic Foundation, Inc. v. Bush, which applied the state secrets privilege to forbid the plaintiffs in that case from showing that they were the targets of the NSA's warrantless wiretapping program. Although I only briefly discuss the point in the column, the case features one very peculiar, indeed troubling, detail.
Al-Haramain sought to rely on a top-secret document that the government had inadvertently provided to Al-Haramain during the course of a separate proceeding concerning the freezing of its assets. The government wanted to freeze Al-Haramain's assets because of its alleged ties to al Qaeda. The Ninth Circuit opinion says that even though the government recovered the top-secret document, that only occurred after Al-Haramain's directors had made copies, which they were apparently permitted to keep---and for all that I know, translate into Arabic and post on their website.
This fact makes the government's need for secrecy at least a bit sketchy. To the extent that the state secrets privilege is needed to protect the actual contents of the top-secret document, it's a bit late to be worrying about that, as the government itself gave it directly to the people who could do the most damage with it. Accordingly, one can only conclude that the case is either wrongly decided or that litigation about the top-secret document would pose an unreasonable risk of revelations of other information that could jeopardize national security. The Ninth Circuit suggests that this is the rationale for its ruling, but only barely. On the crucial point, the opinion simply says, essentially: "We've seen this document in camera and it confirms the need for secrecy."
The Ninth Circuit opinion does not say whether the crackerjack lawyer or administrator who accidentally transmitted the document to Al-Haramain has been disciplined or even reprimanded. Given the usual m.o. of the Bush Administration, he or she could be rewarded with a Presidential Medal of Freedom, but only if the screw-up proves to be truly disastrous.
Posted by Mike Dorf