Patterico's Pontifications

11/16/2007

Huge Admin. Win in 9th Cir. on Terrorist Surveillance Litigation — 3-0 Vote, and all the Judges are Carter and Clinton Appointees. Who can MoveOn blame now?

[Posted By WLS] 

 In this opinion just released this morning, three Judges of the Ninth Circuit, including one of the most liberal anti-government judges in the Country, Harry Pregerson, sided with the Administration on its asserting of the “State Secrets” privilege in a lawsuit brought by Islamic groups and others against both the government. and the telecommunication companies that helped put in place the terrorist surveillance program that involved the use of warrantless wiretaps.

The court first ruled that the existence of the program was no longer a state secret because the Admin. confirmed its existence and some of its details following the exposure of the program in the NYT.  Thus, the Admin. could not now seek to stop the civil suit on the basis that it would be forced to confirm a “state secret” by even acknowledging the existence of the program.

But, the Admin. also invoked the privilege against the plaintiff because litigating the suit would require disclosure to the plaintiff of information (a “sealed document”)  needed to pursue action, but which was classified and a “state secret.” 

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 their agreement.  The Supreme Court denied the suit on the basis that the agreement itself was secret, and that secrecy precluded 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 with their suit — such as confirmation that the plaintiffs had been the target of the Terrorist Surveillance Program and the details of how the program operated.   

  Money quote from p. 22 of the pdf:

“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.

Hard to find a place in there anywhere for a “Bush/Cheney are worse than Hitler” jibe. 

Update:  I incorrectly reported above that the Court had also ruled in the Gov’t favor in the Hepting case against various telecommunications companies.  That appears not to have been the case even though the cases had been consolidated on appeal.  In a separate order the Court ordered that the cases no longer be joined, and issued no decision on the merits in the Hepting case.  That case remains pending.

53 Responses to “Huge Admin. Win in 9th Cir. on Terrorist Surveillance Litigation — 3-0 Vote, and all the Judges are Carter and Clinton Appointees. Who can MoveOn blame now?”

  1. On one hand, it’s interesting that liberal judges couldn’t find anything on which to rule against the Administration. On the other hand, given the 9th Circuit’s track record in getting overruled, why should anyone assume these judges got things right this time?

    stevesturm (d3e296)

  2. The Ninth gets reversed when they do idiotic things and clearly DON’T follow the law.

    Here they followed the process set down by the Supreme Court, and respected the separation of powers between the branches of government.

    WLS (bafbcb)

  3. Here they followed the process set down by the Supreme Court, and respected the separation of powers between the branches of government.

    I’m stunned… Thats a first…

    thomas (b55000)

  4. no one pays any attention to the 9th cir except in matters of entertainment, if this court was to quietly disapear, hardly anyone would notice

    james conrad (7cd809)

  5. james conrad — I practice in the Ninth and while your comment is nice, trite, and pithy, it overlooks the very real fact that the Ninth covers 13 of the 50 states, plus territories in Guam and the Northern Mariana Islands, with jurisidiction covering over 20% of the US population.

    So, while you may think it is easily ignored, it is not.

    WLS (bafbcb)

  6. wls, that maybe but no one takes the 9th cir seriously outside the left coast. its become a rubber stamp event to over turn their buffoonery. i might add as a DC kid (a place where, if you throw a rock out the window, you’ll kill a lawyer)no one takes their local courts seriously either, ditto the govt.

    james conrad (7cd809)

  7. Of course, the 9th should be split. Probably won’t happen for a while.

    JorgXMcKie (4068d7)

  8. the problem with the 9th is, its lost its credibility in its chosen profession and, once thats gone, quite difficult to regain

    james conrad (7cd809)

  9. Good post, WLS, and congratulations on an Instapundit link!

    DRJ (9578af)

  10. I have included your post in my roundup about this.

    Jay (300f71)

  11. WLS:

    Has any other federal court been as over ruled? If so what is the impact on its credibility and influence?

    Thomas Jackson (bf83e0)

  12. “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.”

    So we see the value of leaks: they permit accountability because they make things not secret.

    whitd (10527e)

  13. And your opinion on the Plame case, whitd?

    Pablo (99243e)

  14. “And your opinion on the Plame case, whitd?”

    No legal accountability or lawsuit there should be stopped because of state secrets.

    whitd (10527e)

  15. Hey — an Instapundit link. Cool.

    That should drive some traffic numbers of Patterico. Maybe I’ll get that raise he’s been promising me.

    Or maybe he’ll just like me as much as he likes his pet guest-blogger DRJ.

    WLS (bafbcb)

  16. Re the 9th Circuit and its reversal rate.

    Yep, its embarassing for the Circuit, and I applaud everytime the SC reverses one of their nitwit decisions.

    But, I also practice knowing that about 99% of their cases never get reviewed by the Supreme Court so those all stand.

    And lawyers are forced to take them seriously by virtue of that fact.

    WLS (bafbcb)

  17. No legal accountability or lawsuit there should be stopped because of state secrets.

    Nice dodge, whitd. But I’m referring to the propriety of “outing” her. Your opinion on that?

    Pablo (99243e)

  18. “Nice dodge, whitd. But I’m referring to the propriety of “outing” her. Your opinion on that?”

    So my opinon of the plame case is that it doesn’t seem like it has the benefit that I described: of allowing the legal process to proceed.

    whitd (10527e)

  19. I think that the damage done to Bush/Cheney is irreversable, thanks to the MSMs steady barrage the last 4 years and Bush’s ineloquence.When you see huge headlines in the MSM saying mea culpa then you could claim a victory, but don’t hold your breath.
    Bush made a tough decision,a real war on terrorism, and used his authority to make it successful.That decision mean’t losing lives , which is never popular especially when you do not acheive a quick victory and have made some mistakes in running the war.In addition when we have a culture (rampant in the MSM)started in the 60s of view America being evil and run by rich corrupt people you do not have a chance.
    I have come to accept that Bush will not win a popularity contest,nor do i think he cares, but i think we were fortunate to have someone like Bush running this country because we are safer & because he has shown that AQ and the leaders of Iran are truly evil,and because we still have some good cowboys in America.When you think of it good cowboys never were ones for aquiring power, they just got rid of the bad guys and rode off into the sunset.

    Moose (dcacef)

  20. So we see the value of leaks: they permit accountability because they make things not secret.

    So does this mean nothing should ever be classified?
    Ever?

    The Ace (5818a9)

  21. So my opinon of the plame case is that it doesn’t seem like it has the benefit that I described: of allowing the legal process to proceed.

    That’s an awfully narrow answer, and quite evasive of the point at hand.

    Was it OK for Richard Armitage to “out” Valerie Plame? Remember you said:

    So we see the value of leaks: they permit accountability because they make things not secret.

    In the Plame case, this permitted accountability for Joe Wilson.

    Was it kosher for Armitage to “out” her or not?

    Pablo (99243e)

  22. In the plame case Armitage has stated that her name came across his desk in a memo. If she was undercover agent her name would have never been printed in a memo. It was his honest belief that she wasn’t undercover. This means no crime was commited.

    Richard (e05ad4)

  23. Its been widely reported that the section of the State Dept. memo with her name at the top was marked “Classified”.

    He might have overlooked that, or not realized it when he was giving the info to Novak.

    But Novak’s view is that Armitage was clearly leaking info to Novak that he expected to see in print. Novak and Rollie Evans wrote a column in DC for 35 years that specialized in printing leaked facts, and not just offering opinions.

    Novak recounts Armitage’s exact words as “That’s real “Evans & Novak” stuff isn’t it”, in referring to his comment about Plame working at the CIA.

    It wasn’t a mistake — it was a leak.

    WLS (bafbcb)

  24. Excellent post, WLS, thank you for the info and your insights about it.

    Beldar (7e7631)

  25. Thank you for the kind words Beldar.

    And don’t believe the headlines today like this_one this one in the SF Chron suggesting that the decision is a win for the plaintiffs.

    The 9th did send the case back to the district court to consider whether FISA constitutes a repudiation by Congress of the State Secrets privilege — which is a product of the Common Law. The gov’t appealed the district court’s order allowing the plaintiffs to use what the gov’t claimed was privileged info, and the district court did not reach the question of whether the State Secret privilege had been ended by Congress. The Ninth sent the case back to the district court to consider that question.

    I think the plaintiff will fare equally badly on that claim as well once it is decided, especially given the foundation in the jurisprudence for the privilege, the deference accorded the Exec. in this area (as recognized in the opinion), and the reluctance the courts are going to feel in being asked to find that Congress has eliminated a vital gov’t privilege without ever expressly saying that’s the case.

    wls (a6fede)

  26. Questions for the lawyers:

    Are States assigned to any particular Circuit by an Act of Congress? If not, how is it done?

    Does it take an Act of Congress to move a State to another Circuit?

    Can more Circuits be created?

    Horatio (55069c)

  27. Yes, I believe it’s congress. A couple of years ago there were congressional hearings on whether to break up the 9th circuit because of its size.

    dave (93d2e0)

  28. This is surprising comming from the over turned appelate court in the nation from the same bunch of idiots who said that the plege was unconstitutional becuase of one selfish self centered athists jerk MICHEAL NEWDOW

    krazy kagu (3e8790)

  29. “So does this mean nothing should ever be classified?”

    It means that there is at least an upside to leaks.

    “That’s an awfully narrow answer, and quite evasive of the point at hand.”

    the point at hand is the state secrets privilege, no? you brought up plame. That doesn’t have much to do with the point at hand.

    “In the Plame case, this permitted accountability for Joe Wilson.”

    I don’t think the courts were involved. Or much accountability. If you wanted that, you could just address his work. Wasn’t it?

    “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 their agreement. ”

    Whats really interesting is that state secrets privilege is something created by the courts. Its not in the law or hte constitution.

    whitd (10527e)

  30. whitd — its from the “common law” which is basically the law from England which was understood to be foundation of our laws at the time the Constitution was passed. For 230 years courts have applied common law principles to situations where the Constitution and our statutory law are silent. But Common Law can be invalidated by a statute passed by Congress, which is why the 9th Cir. sent back to the district court for further consideration the question of whether the FISA statute vitiated the common law State Secret’s privilege.

    wls (a6fede)

  31. “whitd — its from the “common law” which is basically the law from England which was understood to be foundation of our laws at the time the Constitution was passed”

    The supreme court case that established it didn’t cite to the law from england. It just said:

    http://supreme.justia.com/us/92/105/case.html

    “It may be stated as a general principle, that public policy forbids the maintenance of any suit in a court of justice, the trial of which would inevitably lead to the disclosure of matters which the law itself regards as confidential, and respecting which it will not allow the confidence to be violated.”

    whitd (10527e)

  32. Courts don’t have to cite to the common law. It’s our legal heritage, underlying everything we do.

    DRJ (42ad54)

  33. “Courts don’t have to cite to the common law.”

    They cite each other as the common law develops. Otherwise how can anyone tell what is and what is not in the “common law”?

    whitd (10527e)

  34. You tell me, whitd. How did the first American courts manage to make decisions without prior case law?

    DRJ (42ad54)

  35. “How did the first American courts manage to make decisions without prior case law?”

    Why dont you go read some cases and find out. Usually they’d cite to their authority, like the constitution, or prior cases, and lay out their reasoning. If they are deriving things from english or colonial common law, they can cite to that. So that we know they’re not making stuff up.

    whitd (10527e)

  36. whitd, you are aware that DRJ has been to law school, and knows a thing or two about how the first American courts manage to make decisions without prior case law?

    Paul (ec9716)

  37. whitd,

    As I’m sure you know, American courts primarily cite authority from the Constitution, prior case law, and legislatively-created statutes and regulations. They can also refer to English common law and case history (although it’s not binding), treatises, and other scholarly works. Ultimately, though, courts can make law by deciding cases and creating new precedents.

    DRJ (42ad54)

  38. “whitd, you are aware that DRJ has been to law school, and knows a thing or two about how the first American courts manage to make decisions without prior case law?”

    I’d prefer not to rely on his authority, and instead rely on his citations.

    Look, all I said was that “state secrets” is a judge made doctrine, not based from the constitution or law. Someone else said it was from the english common law. But without a citation. I pointed out thats not what the court that made it up said. You’d think they would, no? But that’s ok, I’m in favor of judicial activism.

    whitd (10527e)

  39. “Ultimately, though, courts can make law by deciding cases and creating new precedents.”

    I know. Thats the point I made I made at first: “state secrets privilege” is something invented by the supreme court.

    whitd (10527e)

  40. I don’t know the history of the state secrets law, whitd, but I am interested in why you think relying on English common law is “invented” law.

    DRJ (42ad54)

  41. I’d prefer not to rely on his authority, and instead rely on his citations.

    The reason I asked “whitd, you are aware that DRJ has been to law school, and knows a thing or two about how the first American courts manage to make decisions without prior case law?” is because you wrote this:

    Why dont you go read some cases and find out.

    I’d prefer not to rely on his authority, and instead rely on his citations.

    Fine.

    But know this: DRJ happens to be female.

    Paul (ec9716)

  42. “I don’t know the history of the state secrets law, whitd, but I am interested in why you think relying on English common law is “invented” law.”

    I don’t think that, when they rely on English common law, they are participating in the evolution of common law. When they come up with stuff without citations, they are inventing things, which begins a new common law.

    whitd (10527e)

  43. I don’t think that, when they rely on English common law, they are participating in the evolution of common law. When they come up with stuff without citations, they are inventing things, which begins a new common law.

    Not quite. From the Wikipedia entry on Common Law:

    Following the American Revolution, one of the first legislative acts undertaken by each of the newly independent states was to adopt “reception statutes” that gave legal effect to the existing body of English Common Law. Some states enacted reception statutes as legislative statutes, while other states received the English common law through provisions of the state’s constitution.

    For example, the New York Constitution of 1777 provides that:
    “ [S]uch parts of the common law of England, and of the statute law of England and Great Britain, and of the acts of the legislature of the colony of New York, as together did form the law of the said colony on the 19th day of April, in the year of our Lord one thousand seven hundred and seventy-five, shall be and continue the law of this State, subject to such alterations and provisions as the legislature of this State shall, from time to time, make concerning the same. ”

    Alexander Hamilton emphasized in The Federalist that this New York constitutional provision expressly made the common law subject “to such alterations and provisions as the legislature shall from time to time make concerning the same.” Thus, even when reception was effected by a constitution, the common law was still subject to alteration by a legislature’s statute.

    So the English common law established the initial framework for the US legal system. No one simply made it up. And if any changes were made, there was no need for a citation since the common law was–and still is–the original.

    Paul (ec9716)

  44. “So the English common law established the initial framework for the US legal system. ”

    I know that. Did the federal courts adopt common law too?

    “And if any changes were made, there was no need for a citation since the common law was–and still is–the original.”

    What you cite to is another court case discussing the same concept.

    What we have in state secrets is the court just saying something. Without a citation. Is this from teh english common law? How do we know?

    whitd (10527e)

  45. Did the federal courts adopt common law too?

    Are the federal courts part of the US legal system?

    What we have in state secrets is the court just saying something. Without a citation. Is this from teh english common law? How do we know?

    Go back and read WLS #31.

    Paul (ec9716)

  46. whitd,

    There is an American federal common law. This paper compares the common law systems of Australia, Canada, and the US.

    DRJ (42ad54)

  47. “Are the federal courts part of the US legal system?”

    They are separate than the state ones. Your wikipedia link mentioned states adopting common law.

    You ready to get a headache?

    http://en.wikipedia.org/wiki/Federal_common_law

    As the Erie Court put it, there is no “general federal common law”, the key word here being general. Erie did not put an end to other types of federal common law.

    There remain several areas of law where federal common law is allowed to continue. These areas fall into two basic categories: areas where Congress has given the courts power to develop substantive law, and areas where a federal rule of decision is necessary to protect uniquely federal interests

    So states secrets would be the latter. But still nothing telling me that the court in 1870’s was following an english rule.

    “Go back and read WLS #31.”

    I did. But it doesn’t have any support. How do we know its from the english common law?

    whitd (10527e)

  48. They are separate than the state ones. Your wikipedia link mentioned states adopting common law.

    From your own link:

    Up until 1938, the federal courts followed the doctrine set forth in the 1842 case of Swift v. Tyson. In that case, the United States Supreme Court had held that federal courts hearing cases brought under their diversity jurisdiction (allowing them to hear cases between parties from different states) had to apply the statutory law of the states, but not the common law developed by state courts. Instead, the Supreme Court permitted the federal courts to make their own common law based on general principles of law.

    Where do you think those general principles were from?

    Hint: they didn’t simply make them up.

    The reasoning behind the decision in Swift v. Tyson was that the federal courts would craft a superior common law, and the states would choose to adopt it.

    There you go.

    Then came what you cited:

    In 1938, the Supreme Court decided Erie Railroad v. Tompkins. Erie over-ruled Swift v. Tyson, holding instead that federal courts exercising diversity jurisdiction had to use all of the same substantive laws as the courts of the states in which they were located. As the Erie Court put it, there is no “general federal common law”, the key word here being general. Erie did not put an end to other types of federal common law.

    That falls under the “alterations” that Alexander Hamilton talked about.

    Now read WLS #31 with this framework in mind.

    Paul (ec9716)

  49. “Instead, the Supreme Court permitted the federal courts to make their own common law based on general principles of law.”

    Make their own common law. There you go. Thats what I said: they made it.

    “In that case, the United States Supreme Court had held that federal courts hearing cases brought under their diversity jurisdiction

    Totten v. US wasn’t a diversity case.

    “Now read WLS #31 with this framework in mind.”

    Listen. I did. Its a fine argument. And I understand it. But the point is that there is nothing to show that it came from the english common law. What there is, however, is the court case just saying that it is a matter of public policy. Its a court created doctrine.

    whitd (10527e)

  50. Make their own common law. There you go. Thats what I said: they made it.

    Read this again:

    “Instead, the Supreme Court permitted the federal courts to make their own common law based on general principles of law.

    And again:

    “Instead, the Supreme Court permitted the federal courts to make their own common law based on general principles of law.

    And again:

    “Instead, the Supreme Court permitted the federal courts to make their own common law based on general principles of law.

    And I ask again: Where do you think those general principles were from?

    Hint again: they didn’t simply make them up. They based them on general principles of law.

    Oh, by the way did I mention that they based them on general principles of law?

    And I ask again: Where do you think those general principles were from?

    Hint again: they didn’t simply make them up.

    I’ll help you: the general principles were from the English common law.

    Get that? The general principles were from the English common law.

    Just making sure you don’t miss my point this time, that they based them on general principles of law, they didn’t simply make them up, and said general principles were from the English common law.

    Totten v. US wasn’t a diversity case.

    So?

    From your own cite:

    There remain several areas of law where federal common law is allowed to continue. These areas fall into two basic categories: areas where Congress has given the courts power to develop substantive law, and areas where a federal rule of decision is necessary to protect uniquely federal interests.

    and your own quote:

    So states secrets would be the latter.

    But the point is that there is nothing to show that it came from the english common law.

    Then you are refusing to see it.

    Paul (ec9716)

  51. You don’t need to be a dick about this. Obviously we’re miscommunicating. Can you instead try? So you got that totten vs. US wasn’t a diversity case, right? So the Swift stuff you cited doesn’t really work there.

    “Just making sure you don’t miss my point this time, that they based them on general principles of law, they didn’t simply make them up, and said general principles were from the English common law.”

    I get it. But there’s no indication that is what happened in totten v us. All that there is is our knowledge that the federal courts, in some areas, create a common law. And they do that looking to general principles of law. Which includes the common law.

    There’s no indication that “state secrets” is a general principle of law. We don’t even have a citation that “state secrets” was part of the english common law. I mean, that would help, but it still wouldn’t prove that that is what happened in totten.

    And even if they did, it was a judicial creation to decide to import the state secrets doctrine into american law. There’s nothing to say that it has to be imported. So we still have what I said at the beggining:

    Now, even if all that was true, common law is created by courts. So even if it DID come from the english common law, it would still be true, what I said: that it was created by courts.

    “Then you are refusing to see it.”

    Look. you’ve given me general claims about the common law. Nothing about this specific proposition of it: state secrets.

    whitd (10527e)

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