9th Circuit Rejects Challenge to Warrantless Wiretaps
Posted on November 16, 2007
Wonders never cease! A sliver of sanity actually coming from the infamously liberal leaning 9th Circuit Court in favor of the Bush administration!
A federal appeals court in San Francisco today handed a major victory to the Bush administration, ruling that a lawsuit challenging the government’s warrantless wiretapping program could not go forward because of the “state secrets” privilege.
In a 3-0 decision, the U.S. 9th Circuit Court of Appeals sided with the government, which had argued that allowing an Islamic charity’s claims that it was illegally spied upon to go forward would threaten national security.
In the opinion, Judge M. Margaret McKeown flatly rejected the government’s argument that “the very subject matter of the litigation is a state secret.”
However, after reviewing in camera sealed information from the government, McKeown said on behalf of the three-judge panel, “We acknowledge 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.”
Naturally the libtard heads are exploding! Jammie Wearing Fool rounds up their reactions.
I should note, first of all, that the Sixth Circuit has reached a contrary conclusion, so expect the Supreme Court to weigh in on this sooner rather than later. The net result of this line of reasoning is that the media can combine with the courts to create a no-win situation: the media discloses a secret program and portrays it in an unfavorable light that suggests it’s illegal; the White House can’t stay silent without taking a public beating; and then the courts say that lawsuits can not only be filed because the White House fought back, but they also allow the development of a one-sided and incomplete factual record based on media misreporting.
None of which helps fight the bad guys.
Kinda scary that we may have to rely on the opinion of Anthony Kennedy to get this one right. I can’t find that the ACLU was involved in this case, however I’m sure they are disappointed at the precedent and hurdle it brings to their cause.
As the court noted, this line of authority goes back to espionage cases following the Civil War where spies hired by the Union sought to recover damages relating to the agreement. The Supreme Court denied the suit on the basis that the agrement itself was secret, and that secrecy precludes any court action to enforce its terms.
In this case the Court held that the government had properly invoked the State Secrets privilege with respect to document(s) and information which the plaintiffs would need to proceed – such as confirmation that the plaintiffs had been the target of the Terrorist Surveillance Program and the details of how the program operated.
Both Patterico and Captain Ed point to this paragraph as key in the ruling.
Having reviewed it in camera, we conclude that the Sealed Document is protected by the state secrets privilege, along with the information as to whether the government surveilled Al-Haramain. We take very seriously our obligation to review the documents with a very careful, indeed a skeptical, and not to accept at face value the government’s claim or justification of privilege. Simply saying “military secret,†“national security†or “terrorist threat†or invoking an ethereal fear that disclosure will threaten our nation is insufficient to support the privilege. Sufficient detail must be—and has been—provided for us to make a meaningful examination. The process of in camera review ineluctably places the court in a role that runs contrary to our fundamental principle of a transparent judicial system. It also places on the court a special burden to assure itself that an appropriate balance is struck between protecting national security matters and preserving an open court system. That said, we acknowledge the need to defer to the Executive on matters of foreign policy and national security and surely cannot legitimately find ourselves second guessing the Executive in this arena.
I’m still shocked this came from the 9th Circuit. Well, you know what they say about broken clocks.
» Filed Under ACLU, Liberal Media/Bias, News, War On Terror
Trackback URL
Comments
2 Responses to “9th Circuit Rejects Challenge to Warrantless Wiretaps”
Affiliations
The Giants
-
Advertise
Donate
Suggestions
Our Store
Click the design to visit our store and help Stop the ACLU!
More blogs about the ACLU
I only have two questions: who does and how do they go about doing it?
“In a 3-0 decision, the U.S. 9th Circuit Court of Appeals sided with the government” Jay
The U.S. 9th Circuit Court of Appeals is the government or at least part thereof.
You meant the judicial branch agreed with the executive branches claim. They are correct in their reasoning though I would use other words. I wonder which 3 judges made the ruling though. I am pretty sure they were not far left judges.