Al-Haramain Islamic Foundation, Inc. v. Bush

• Decision Date: 16 November 2007
• Docket Number: No. 06-36083.,06-36083.
• Citation: 507 F.3d 1190
• Parties: AL-HARAMAIN ISLAMIC FOUNDATION, INC., an Oregon Nonprofit Corporation; Wendell Belew, a U.S. Citizen and Attorney at Law; Asim Ghafoor, a U.S. Citizen and Attorney at Law, Plaintiffs-Appellees, v. George W. BUSH, President of the United States, et al., Defendants-Appellants.
• Court: U.S. Court of Appeals — Ninth Circuit

507 F.3d 1190

AL-HARAMAIN ISLAMIC FOUNDATION, INC., an Oregon Nonprofit Corporation; Wendell Belew, a U.S. Citizen and Attorney at Law; Asim Ghafoor, a U.S. Citizen and Attorney at Law, Plaintiffs-Appellees, v. George W. BUSH, President of the United States, et al., Defendants-Appellants.

No. 06-36083.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted August 15, 2007.

Filed November 16, 2007.

Paul D. Clement, Solicitor General, Gregory G. Garre, Deputy Solicitor General, Daryl Joseffer, Assistant to the Solicitor General, Washington, DC; Peter D. Keisler, Assistant Attorney General, and Douglas N. Letter, Thomas M. Bondy, Anthony A. Yang, Appellate Staff, Civil Division, Washington, DC, for the defendants-appellants.

Jon B. Eisenberg, William N. Hancock, Eisenberg and Hancock LLP, Oakland, CA; Lisa R. Jaskol, Los Angeles, CA; Thomas H. Nelson, Zaha S. Hassan, Thomas H. Nelson & Associates, Welches, OR; Steven Goldberg, Portland, OR; J. Ashlee Albies, Law Offices of J. Ashlee Albies, Portland, OR, for the plaintiffs-appellees.

Appeal from the United States District Court for the Northern District of California; Garr M. King, District Judge, Presiding. D.C. Nos. MDL-CV-06-1791-VRW, CV-07-00109-VRW.

Before: HARRY PREGERSON, HAWKINS, and M. MARGARET McKEOWN, Circuit Judges.

McKEOWN, Circuit Judge:

Following the terrorist attacks on September 11, 2001, President George W. Bush authorized the National Security Agency ("NSA") to conduct a warrantless communications surveillance program. The program intercepted international communications into and out of the United States of persons alleged to have ties to Al Qaeda and other terrorist networks. Though its operating parameters remain murky, and certain details may forever remain so, much of what is known about the Terrorist Surveillance Program ("TSP") was spoon-fed to the public by the President and his administration.

After The New York Times first revealed the program's existence in late 2005, government officials moved at lightning-speed to quell public concern and doled out a series of detailed disclosures about the program. Only one day after The New York Times' story broke, President Bush informed the country in a public radio address that he had authorized the interception of international communications of individuals with known links to Al Qaeda and related terrorist organizations. Two days after President Bush's announcement, then-Attorney General Alberto Gonzales disclosed that the program targeted communications where the government had concluded that one party to the communication was a member of, or affiliated with, Al Qaeda. The Department of Justice followed these and other official disclosures with a lengthy white paper in which it both confirmed the existence of the surveillance program and also offered legal justification of the intercepts.

The government's plethora of voluntary disclosures did not go unnoticed. Al-Haramain Islamic Foundation, a designated terrorist organization, and two of its attorneys (collectively, "Al-Haramain") brought suit against President Bush and other executive branch agencies and officials. They claimed that they were subject to warrantless electronic surveillance in 2004 in violation of the Foreign Intelligence Surveillance Act, 50 U.S.C. §§ 1801 et seq. ("FISA"), various provisions of the United States Constitution, and international law. The government countered that the suit is foreclosed by the state secrets privilege, an evidentiary privilege that protects national security and military information in appropriate circumstances.

Essential to substantiating Al-Haramain's allegations against the government is a classified "Top Secret" document (the "Sealed Document") that the government inadvertently gave to Al-Haramain in 2004 during a proceeding to freeze the organization's assets. Faced with the government's motions to dismiss and to bar Al-Haramain from access to the Sealed Document, the district court concluded that the state secrets privilege did not bar the lawsuit altogether. The court held that the Sealed Document was protected by the state secrets privilege and that its inadvertent disclosure did not alter its privileged nature, but decided that Al-Haramain would be permitted to file in camera affidavits attesting to the contents of the document based on the memories of lawyers who had received copies.

In light of extensive government disclosures about the TSP,¹ the government is hard-pressed to sustain its claim that the very subject matter of the litigation is a state secret. Unlike a truly secret or "black box" program that remains in the shadows of public knowledge, the government has moved affirmatively to engage in public discourse about the TSP. Since President Bush's initial confirmation of the program's existence, there has been a cascade of acknowledgments and information coming from the government, as officials have openly, albeit selectively, described the contours of this program. Thus, we agree with the district court that the state secrets privilege does not bar the very subject matter of this action. After in camera review and consideration of the government's documentation of its national security claim, we also agree that the Sealed Document is protected by the state secrets privilege. However, we reverse the court's order allowing Al-Haramain to reconstruct the essence of the document through memory. Such an approach countenances a back door around the privilege and would eviscerate the state secret itself. Once properly invoked and judicially blessed, the state secrets privilege is not a half-way proposition.

Nonetheless, our resolution of the state secrets issue as applied to the Sealed Document does not conclude the litigation. Al-Haramain also claims that FISA preempts the common law state secrets privilege. We remand for determination of this claim, a question the district court did not reach in its denial of the government's motion to dismiss.

BACKGROUND

I. FACTUAL BACKGROUND²

On December 16, 2005, the New York Times reported that in the years following September 11, 2001, President Bush secretly authorized the NSA to conduct electronic surveillance on Americans and others without warrants. James Risen & Eric Lichtblau, Bush Lets U.S. Spy on Callers Without Courts, N.Y. TIMES, Dec. 16, 2005, at A1. The next day, President Bush confirmed in a radio address that he had authorized "the interception of international communications of people with known links to Al Qaeda and related terrorist organizations." George W. Bush, President's Radio Address (Dec. 17, 2005), http://www.whitehouse.gov/news/releases/2005/12/20051217.html (last visited Nov. 8, 2007). The President acknowledged that he reauthorized the program more than 30 times since September 11, 2001, but that the program was suspended in January 2007. Id.

Then-Attorney General Alberto Gonzales, and other administration officials, also disclosed in public statements that the NSA, under the TSP, intercepted electronic information where the government had grounds to believe that one party to the communication was a member or agent of a terrorist organization affiliated with Al Qaeda. See Press Briefing by Attorney General Alberto Gonzales and General Michael V. Hayden, Principal Deputy Director for National Intelligence (Dec. 19, 2005), http://www.whitehouse.gov/news/ releases/2005/12/20051219-1.html (last visited Nov. 8, 2007). Attorney General Gonzales emphasized that the government had not engaged in "blanket surveillance," but instead attempted to home in on individuals who had apparent links to Al Qaeda. Id. The government stated that interception under the program took place only if there were reasonable grounds to believe that one party to the communication was a member or agent of Al Qaeda or an affiliated terrorist organization. Id. The government did not obtain warrants for this surveillance, which took place outside the context of the Foreign Intelligence Surveillance Court ("FISC"). In January 2007, Attorney General Gonzales stated that this type of surveillance is now subject to the judicial jurisdiction of the FISC. Letter from Alberto Gonzales, Attorney General, to Patrick Leahy and Arlen Specter, Senators (Jan. 17, 2007), available at http://leahy.senate.gov/press/200701/1-17-07ÄGto PJLReFISACourt.pdf.

Al-Haramain is a Muslim charity which is active in more than 50 countries. Its activities include building mosques and maintaining various development and education programs. The United Nations Security Council has identified Al-Haramain as an entity belonging to or associated with Al Qaeda. In February 2004, the Office of Foreign Assets Control of the Department of Treasury temporarily froze Al-Haramain's assets pending a proceeding to determine whether to declare it a "Specially Designated Global Terrorist" due to the organization's alleged ties to Al Qaeda. Ultimately, Al-Haramain and one of its directors, Soliman Al-Buthi, were declared "Specially Designated Global Terrorists."

In August 2004, during Al-Haramain's civil designation proceeding, the Department of the Treasury produced a number of unclassified materials that were given to Al-Haramain's counsel and two of its directors. Inadvertently included in these materials was the Sealed Document, which was labeled "TOP SECRET." Al-Haramain's counsel copied and disseminated the materials, including the Sealed Document, to Al-Haramain's directors and co-counsel, including Wendell Belew and Asim Ghafoor. In August or September of 2004, a reporter from The Washington Post reviewed these documents while researching an article. In late August, the FBI was notified of the Sealed Document's inadvertent disclosure. In October of 2004, the FBI retrieved all copies of the Sealed Document from Al-Haramain's counsel, though it did not seek out Al-Haramain's directors to obtain their copies. The Sealed Document is located in a ...