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State Secrets Rebuffed (Again)

A Muslim charity won its case this week in a litigation over warrantless surveillance—and the government was put on notice not to use the state secrets privilege as a weapon to derail litigation.

  • David Shapiro
April 3, 2010

The Muslim charity that alleged the government eavesdropped on its calls without obtaining a warrant won its lawsuit on Wednesday, March 31, 2010. The court did not decide directly whether warrantless wiretapping violates the law, instead, the ruling is important for another reason: the court refused to let the government use the state secrets privilege as a tool to derail litigation. 

This was not the first time the government used the state secrets privilege – a doctrine that that allows the government to block evidence thought to compromise national security – in this case. Earlier, the government invoked the privilege to demand dismissal of the entire suit. In 2007, an appeals court rebuffed this attempt to eliminate the litigation outright and sent the case back to the district court.

In the latest round, the government refused to submit evidence to the district court both on whether surveillance occurred and whether a warrant existed, claiming that such matters qualified as state secrets. But this argument contradicted the Foreign Intelligence Surveillance Act, which creates a mechanism for the government to submit evidence to the court on these very issues. In keeping with the law Congress passed, the court rejected this second attempt to use the state secrets privilege to block the litigation.

Read NY Times coverage of the case.

Read the opinion (pdf).